ILLINOIS POLLUTION CONTROL BOARD
June 6, 2002
COLE TAYLOR BANK, not individually,
but solely as trustee under a certain Illinois
land trust known as trust 40323; as successor
trustee to Michigan Avenue National Bank
of Chicago, under trust 1904,
Complainant,
v.
ROWE INDUSTRIES, INC, a corporation,
successor to COLEMAN CABLE AND
WIRE COMPANY, a corporation, and
CHAPCO CARTON COMPANY, a
corporation,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB 01-173
(Citizens Enforcement - Land)
ORDER OF THE BOARD (by S.T. Lawton, Jr.):
This matter is before the Board on the parties’ joint request that the Board rule on the
validity of affirmative defenses raised by respondents, Rowe Industries Inc. (Rowe) and
Chapco Carton Company (Chapco), to exonerate them from liability under Section 21(e) of the
Environmental Protection Act (Act).
See
415 ILCS 5/21(e) (2000). The complainant, Cole
Taylor Bank (Cole Taylor) did not
file a motion to strike the respondents’ affirmative defenses.
However, the parties stated at status conferences that they are awaiting a Board decision on this
issue.
See e.g.
Cole Taylor Bank v. Rowe Industries Inc. and Chapco Carton Co., PCB 01-
173, slip op. at 1 (May 9, 2002). The Board accordingly analyzes whether each alleged
affirmative defense was properly pled.
For the reasons stated below, the Board strikes eight of nine alleged affirmative
defenses raised by Chapco and all seven affirmative defenses raised by Rowe. The Board finds
that the pleadings provided sufficient information to strike on the merits the respondents’
defenses alleging that the complaint is duplicitous and this suit is barred by
res judicata
. Since
Chapco did not provide sufficient legal or factual proof to support its allegation of collateral
estoppel, the Board does not decide at this time whether the remaining alleged affirmative
defense bars liability under the Act. The parties may address this issue in a subsequent motion
or at hearing.
PROCEDURAL HISTORY
2
On June 26, 2001, Cole Taylor filed a complaint with the Board. It filed an amended
complaint on July 19, 2001. Cole Taylor states that it is the trustee of real property located at
1810 North Fifth Avenue, River Grove, Cook County (site). Cole Taylor alleges that Rowe
and Chapco caused or allowed the deposit of hazardous waste at the site in violation of Section
21(e) of the Act (415 ILCS 5/21(e) (2000)). On August 9, 2001, the Board accepted the
amended complaint for hearing, finding that it was neither duplicitous nor frivolous.
Chapco and Rowe filed answers that included alleged affirmative defenses on August
27, 2002 and September 17, 2001, respectively. Chapco raised an additional affirmative
defense on August 31, 2001. On October 1, 2001, Cole Taylor filed an answer to Rowe’s
affirmative defenses. Cole Taylor did not file an answer to the original or supplemental
affirmative defenses raised by Chapco.
PRELIMINARY MATTER
Chapco filed a motion for leave to file
instanter
an additional affirmative defense of
collateral estoppel on August 31, 2001. Although Cole Taylor filed its complaint with the
Board on June 26, 2001, Chapco argues that Cole Taylor did not serve the complaint on Rowe
until July 17, 2001. Because of the delayed service, Chapco argues that Cole Taylor agreed to
an extension of time until September 17, 2001, for Chapco to file its Answer and Affirmative
Defenses. Chapco contends that the new date is 60 days from the July 17, 2001 date of service
on Rowe.
Despite this “agreement,” Chapco filed its original answer and affirmative defenses on
August 27, 2001, which was 60 days from the original June 26, 2001 filing date. Chapco then
filed its motion for leave to file an additional affirmative defense on August 31, 2001, which
was after 60 days from the date that Cole Taylor filed its complaint, but within the time
“agreed upon” by Chapco and Cole Taylor to file its answer. Since Cole Taylor did not file a
response to the motion, the Board finds that it waived any objection to granting it, pursuant to
35 Ill. Adm. Code 101.500(d). The Board grants Chapco’s motion for leave
instanter
to file
its additional affirmative defense in accordance with 35 Ill. Adm. Code 103.204(d). The
Board evaluates the alleged defense later in the discussion section.
BACKGROUND
Cole Taylor succeeded Michigan Avenue National Bank of Chicago (Michigan Avenue
National Bank) as trustee of the site. Comp. at 1.
1 Cole Taylor alleges that Coleman Cable
and Wire Company (Coleman), predecessor of Rowe, leased the site from Michigan Avenue
National Bank in 1971. Comp. at 2. Coleman allegedly sublet the site to Chapco in 1984.
Chapco and Cole Taylor dispute whether the sublease expired on December 31, 1996 (Comp.
at 2) or
January 31, 2001 (Rowe Ans. at 3; Chapco Ans. at 3).
1 Cole Taylor filed with the Board a complaint on June 26, 2001, which is referred to as
“Comp. at ___.”
3
Cole Taylor alleged that, between 1971 and the date of the complaint, Chapco and
Rowe caused or allowed hazardous substances to be deposited on the site, including
tetrachloroethene, arsenic, benzo(a)pyrene, and lead. Comp. at 2. Cole Taylor contends that
respondents’ conduct violated Section 21(e) of the Act (415 ILCS 5/21(e) (2000)). Comp. at
4. Cole Taylor requested that the Board order Chapco and Rowe to cease and desist from
further violating this section, and to remediate contamination resulting from the deposit of the
above hazardous substances. Comp. at 4-5. Respondents deny these allegations, and raise
several affirmative defenses that they allege preclude liability under the Act, which the Board
discusses below.
STANDARD
The Board’s procedural rules specify that “[a]ny 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 hearing.” 35 Ill. Adm. Code
103.204(d). In an affirmative defense, the respondent alleges ‘“ new facts or arguments that,
if true, will defeat . . . the government’s claim even if all allegations in the complaint are
true.” People v. Community Landfill Company, PCB 97-193, slip op. at 3 (Aug. 6, 1998)
(citation omitted).
The Code of Civil Procedure gives additional guidance on pleading affirmative
defenses. Section 2-613(d) provides, in part:
The facts constituting any affirmative defense . . . and any defense which by
other affirmative matter seeks to avoid the legal effect of or defeat the cause of
action set forth in the complaint . . . in whole or in part, and any ground or
defense, whether affirmative or not, which, if not expressly stated in the
pleading, would be likely to take the opposite party by surprise, must be plainly
set forth in the answer or reply.” 735 ILCS 5/2-613(d) (2001).
When asserting an affirmative defense, “the test is whether the defense gives color to
the opposing party’s claim and then asserts new matter by which the apparent right is
defeated.” Condon v. American Telephone and Telegraph Company, Inc., 210 Ill. App. 3d
701, 709, 569 N.E.2d 518, 523 (2nd Dist. 1991), citing Worner Agency v. Doyle, 121 Ill.
App. 3d 219, 222, 459 N.E.2d 633, 635 (4th Dist. 1984).
A motion to strike an affirmative defense admits well-pleaded facts constituting the
defense, only attacking the legal sufficiency of the facts. International Insurance Company v.
Sargent and Lundy, 242 Ill. App. 3d 614, 630-31, 609 N.E.2d 842, 853-54 (1st Dist. 1993),
citing Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 854, 539 N.E.2d 787 (1989).
“Where the well-pleaded facts of an affirmative defense raise the possibility that the party
asserting them will prevail, the defense should not be stricken.” International Insurance, 242
Ill. App. 3d at 631, 609 N.E.2d at 854 (citation omitted).
4
DISCUSSION
The Board first addresses affirmative defenses raised by both Rowe and Chapco. The
respondents allege seven identical defenses. They submit that: (1) the complaint is
duplicitous; (2) the respondents lacked material causation or contribution to any release of
hazardous substances on the site; (3) an act of God caused the release; (4) a third party caused
the release; (5) the release was permitted by state or federal law; (6) Section 33(c) criteria are
not met; and (7) respondents suffer an arbitrary and unreasonable hardship under 415 ILCS
5/31(c). The Board then discusses the two affirmative defenses of
res judicata
and collateral
estoppel that were solely raised by Chapco. The Board ultimately determines whether each of
the respondents’ arguments are properly characterized as affirmative defenses, and strikes
allegations that either hold no merit or do not fall into this category.
Duplicitous Complaint
As previously stated, on August 9, 2001, the Board found that the July 19, 2001
amended complaint was neither duplicitous nor frivolous. In their answers, both Rowe and
Chapco allege that the Board lacks subject matter jurisdiction under Section 31(d) of the Act
(415 ILCS 5/31(d) (2000)) because the complaint in this matter is duplicitous. Section 31(d)
provides that the Board shall schedule a hearing unless it finds a complaint is duplicitous or
frivolous.
See
415 ILCS 5/31(d) (2000). The Board’s procedural rules define “duplicitous” or
“duplicative” as a matter that is “identical or substantially similar to one brought before the
Board or another forum.” 35 Ill. Adm. Code 101.202.
Rowe and Chapco allege that this matter is duplicative of a breach of contract action
filed by Cole Taylor in Illinois Circuit Court on April 29, 1997. They contend that Cole
Taylor alleged in the earlier complaint that they violated Section 21(e) of the Act by causing or
allowing contamination of the soil at the site with hazardous substances. Rowe Ans. at 8;
2
Chapco Ans. at 8.
3 Chapco and Rowe also argue that Cole Taylor sought a $250,000 sum to
cover the costs to remediate the site. Rowe Ans. at 9; Chapco Ans. at 9. In this case, Cole
Taylor similarly requested the Board to order the respondents to undertake this remediation.
Id.
For these reasons, the respondents allege that this suit is substantially similar to the one
that Cole Taylor brought before the Circuit Court.
Id.
The Board finds that the contract dispute in the Circuit Court involves a separate cause
of action, which is neither identical nor substantially similar to the environmental violations
alleged in the complaint in this matter. The Board has previously found that complaints
alleging violations of the Act are not duplicative of related cases concerning breach of contract
2 Rowe filed an answer to the complaint and affirmative defenses on September 17, 2001,
which is referred to as “Rowe Ans. at __.”
3 Chapco filed an answer to the complaint and affirmative defenses on August 27, 2001, which
is referred to as “Chapco Ans. at __.”
5
and fraud. Illinois v. State Oil Company, William Anest f/d/b/a S & S Petroleum Products,
et
al.
, PCB 97-103, slip op. at 6 (Aug. 19, 1999) (citing Morton College Board of Trustees v.
Town of Cicero, PCB 98-59, slip op. at 5 (Jan. 8, 1998)).
The question as to whether Rowe and Chapco violated the Act as alleged in the July 19,
2001 amended complaint is properly before the Board. The previous Circuit Court proceeding
concerning whether respondents violated their lease or were negligent in the care of the site in
the context of a contract dispute does not affect our authority to hear this environmental matter
at this time.
See
Village of Park Forest v. Sears, Roebuck & Co., PCB 01-77, slip op. at 4
(Feb. 15, 2001). The Board accordingly strikes this affirmative defense.
Lack of Material Causation / Contribution
Chapco and Rowe allege that their lack of material causation or contribution to a
release of hazardous substances on the site is an affirmative defense to this action under
Section 58.9(a)(2)(A) of the Act.
See
415 ILCS 5/58.9(a)(2)(A) (2000). Section 58.1 sets
forth a site remediation program (SRP) that persons may elect to utilize under certain
circumstances where they are required to perform investigations and remediations under the
Act.
See
415 ILCS 5/58.1(a)(2) (2000). Section 58.9
of the Act provides that persons cannot
be required to perform remedial action if they “neither caused nor contributed to in any
material respect a release of regulated substances on, in, or under the site that was identified
and addressed by the remedial action taken pursuant to this Title.” 415 ILCS 5/58.9(a)(2)(A)
(2000).
The respondents allege that this section provides them with an affirmative defense
because the hazardous substances that Cole Taylor found in the soil at the site exist naturally in
all soils throughout North America and the world. Rowe Ans. at 11; Chapco Ans. at 13.
Rowe and Chapco also argue that neither party caused or contributed in any way to the
presence of hazardous substances that Cole Taylor alleges to have found on the site. Rowe
Ans. at 11; Chapco Ans. at 14. They state that any contamination was instead caused by
unaffiliated nearby businesses. Rowe Ans. at 11; Chapco Ans. at 14.
Proportionate share liability is a limitation on remedies, not a bar to a cause of action.
See
Proportionate Share Liability: 35 Ill. Adm. Code 741, R97-16, slip op. at 4 (Dec. 17,
1998). The Board strikes this argument as an affirmative defense. However, the parties may
further address this issue at hearing. The Board notes that, in striking this purported defense,
it does not rule on the applicability of Section 58.9 of the Act (415 ILCS 5/58.9 (2000)) to this
matter.
Act of God/Act of Third Parties
The respondents argue that Cole Taylor is barred from bringing this suit because any
contamination on the site was either caused by an act of God or of third parties. Rowe Ans. at
13; Chapco Ans. at 15-16. They allege that the natural occurrence of contaminants allegedly
6
detected by Cole Taylor at the site is an act of God, which is an affirmative defense under
Section 22.2(j)(1)(A) of the Act.
See
415 ILCS 5/22.2(j)(1)(A)(2000). Cole Taylor responded
that, while the substances may naturally exist in the soil, they do not occur in the
concentrations detected at the site. Comp. Ans. at 5.
In the alternative, the respondents argue that any hazardous substances that allegedly
exist on the site are a result of activity by nearby unrelated businesses. Rowe Ans. at 14-15;
Chapco Ans. at 17-18. They contend that they never contributed in any way to the presence of
hazardous substances alleged by Cole Taylor to be present on the property. Rowe Ans. at 15;
Chapco Ans. at 18.
Section 22.2(j)(1) provides that:
There shall be no liability under this Section for a person otherwise liable
who can establish by a preponderance of evidence that the release or
substantial threat of release of a hazardous substance and the damages
resulting therefrom were caused solely by:
A. an act of God . . . .
***
C. an act or omission of a third party other than an employee or
agent of the defendant, or other than one whose act or omission
occurs in connection with a contractual relationship, existing
directly or indirectly with the defendant . . . . 415 ILCS
5/22.2(j)(1)(A), (C) 2000.
The Board finds that these arguments do not raise valid affirmative defenses here
because Section 22.2(j)(1) of the Act (415 ILCS 5/22.2(j)(1) (2000)), by its terms, only applies
to actions under Section 22.2 of the Act (415 ILCS 5/22.2 (2000)). Cole Taylor brings this
action under Section 31(d) of the Act.
See
415 ILCS 5/31(d) (2000). Accordingly, the Board
strikes these alleged affirmative defenses as inapplicable to this case.
Release Permitted by State or Federal Law
Rowe and Chapco allege that they are not liable because any release of hazardous
substances on the site was permitted by state or federal law.
See
415 ILCS 5/22.2(j)(2)
(2000). They argue that the level of contaminants in the soil on the site is permitted under
regulatory standards for remediating sites that are used for commercial or industrial purposes.
Rowe Ans. at 17; Chapco Ans. at 19-20. Rowe and Chapco contend that the Tiered Approach
to Corrective Action Objectives (TACO) regulations permit the current level of contamination
to remain on the site because: (1) engineered barriers contain the contamination in accordance
with TACO, which the new lessors of the property do not plan to disturb; and (2) the site is
located in a community that has an ordinance outlawing the use of groundwater for potable
purposes.
See
415 ILCS 5/58.11; 35 Ill. Adm. Code 742; Rowe Ans. at 17; Chapco Ans. at
7
19-20. Respondents allege that if TACO applies to the site, then the levels of present
contamination do not exceed the standards for commercial/industrial use of the property
because of the above circumstances, and respondents are therefore not in violation of the Act.
Rowe Ans. at 22; Chapco Ans. at 24.
Cole Taylor admits that the site is presently zoned commercial/industrial. Comp. Ans.
at 10. It agrees that an unaffiliated third party now leases the site with knowledge of the
alleged existence of the hazardous substances on the property. Comp. at 11. Cole Taylor also
admits that, although it and the new lessor have exclusive possession and control of the
property, neither has initiated remediation of the alleged contamination.
Id.
For the same reasons as above, the Board finds that the respondents do not raise an
affirmative defense because it is based upon Section 22.2(j)(2) of the Act (415 ILCS
5/22.2(j)(2) (2000)), which only applies to causes of action under Section 22.2 of the Act (415
ILCS 5/22.2 (2000)). Since Cole Taylor brings this cause of action under Section 31(d) of the
Act (415 ILCS 5/31(d) (2000)), the Board strikes this as an affirmative defense.
The Board has not previously addressed the issue of whether the existence of the TACO
clean-up standards preclude the finding that a person violated Section 21(e) of the Act by
disposing, treating, storing, or abandoning waste on the site.
See
415 ILCS 5/21(e) (2000);
but see also
Village of Park Forest v. Sears, Roebuck & Company, PCB 01-77, slip op. at 5, 8
(June 6, 2002). Upon appropriate motion or pleading, the Board will entertain further
evidence and argument on this issue, but will not presently rule on the merits of the claim.
Section 33(c) Criteria
Respondents allege that, if standards under TACO apply to the site in the manner
described in the previous section, then the contamination constitutes a reasonable emission,
discharge, and/or deposit under Section 33(c) of the Act.
See
415 ILCS 5/33(c) (2000). When
the Board makes orders and determinations, it considers “all the facts and circumstances
bearing upon the reasonableness of the emissions, discharges, or deposits involved . . . .
Id.
The Board includes an analysis of five criteria under this section when determining whether a
party violated the Act.
Id.
The Board finds that the alleged defense is not properly raised because it attacks the
sufficiency of the claim rather than the complainant’s legal right to bring a cause of action.
People v. John Crane, Inc., PCB 01-76, slip op. at 3 (May 17, 2001), citing Farmers State
Bank v. Phillips Petroleum Co., PCB 97-100, slip op. at 2, n.1 (Jan. 23, 1997). “An
affirmative defense is a response to a claim which attacks the complainant’s right to bring an
action.” People v. Midwest Grain Products of Illinois, PCB 97-179, slip op. at 5 (Aug. 21,
1997) (citations omitted). For these reasons, the Board strikes this argument as an improperly
pled affirmative defense. Even though the argument concerning the Section 33(c) criteria is
not an affirmative defense, the parties are still free to address this issue at hearing.
8
Arbitrary and Unreasonable Hardship Under Section 31(e) of the Act
Respondents allege that this suit is barred because holding Rowe and Chapco to a more
stringent standard than found under TACO would impose an arbitrary and unreasonable
hardship on them. Rowe Ans. at 29; Chapco Ans. at 32. Section 31(e) of the Act provides
that:
In hearings before the Board under this Title the burden shall be on the
Agency or other complainant to show either that the respondent has
caused or threatened to cause air or water pollution or that the
respondent has violated or threatens to violate any provision of this Act
or any rule or regulation of the Board or permit or term or condition
thereof. If such proof has been made, the burden shall be on the
respondent to show that compliance with the Board’s regulations would
impose an arbitrary or unreasonable hardship. 415 ILCS 5/31(e) (2000).
Whether compliance would be deemed arbitrary or cause an unreasonable hardship is
simply a matter to be considered in mitigation when determining whether to assess monetary
penalties.
See
Lonza, Inc. v. PCB, 21 Ill. App. 3d 468, 315 N.E.2d 652 (1974); Archer
Daniels Midland Co. v. PCB, 119 Ill. App. 3d 428, 456 N.E.2d 914 (1983). The Board
accordingly strikes this issue as an improperly pled affirmative defense. The respondents may
present evidence and arguments concerning Section 31(e) of the Act (415 ILCS 5/31(e) (2000)
at hearing.
Res Judicata
Chapco alleged the affirmative defense of
res judicata
, stating that the Illinois Circuit
Court dismissed with prejudice the earlier described breach of contract case, which involved
the same parties and the same cause. Chapco Ans. at 11-12.
Res judicata
is a legal doctrine
stating that once a court decides a cause of action, it cannot be retried between the same
parties. People v. Jersey Sanitation Corp., PCB 97-2, slip op. at 4 (Apr. 4, 2002); ESG
Watts, Inc. v. IEPA, PCB 96-181 and PCB 97-210, slip op. at 2 (July 23, 1998), citing Burke
v. Village of Glenview
et al.
, 257 Ill. App. 3d 63, 69, 628 N.E. 2d 465, 469 (1st Dist. 1993).
The elements of
res judicata
are: (1) a final judgment on the merits rendered by a court of
competent jurisdiction; (2) an identity of cause of action; and (3) an identity of parties, or
privity between subsequent parties and the original parties. Jersey Sanitation, PCB 97-2, slip
op. at 4-5; ESG Watts, PCB 96-181 and 97-210, slip op. at 2, citing People
ex rel.
Burris v.
Progressive Land Developers, Inc., 151 Ill. 2d 285, 294, 602 N.E. 2d 820, 825 (1992). Where
these elements are present, a judgment in a suit between the parties will be conclusive of all
questions decided as well as questions which could have been litigated and decided, and will
bar re-litigation of any such issues in a subsequent action. ESG Watts, PCB 96-181 and 97-
210, slip op. at 2; citing Progressive Land Developers, 151 Ill. 2d at 294, 602 N.E. 2d at 825.
9
Chapco included in its answer a copy of the final judgment rendered on July 16, 1999,
by the Circuit Court of Cook County, dismissing Chapco from a breach of contract case
brought by Cole Taylor.
See
Chapco Ans. Attachment at 59. Chapco alleges that Cole Taylor
brought both suits against the same parties, Rowe and Chapco. Chapco Ans. at 11. Chapco
attached the former complaint as proof of this element
. See
Chapco Ans. Attachment at 1.
Lastly, Chapco argues that both cases involve the same cause of action. Chapco Ans. at 11.
Chapco contends that Cole Taylor alleged that Rowe and Chapco breached their contracts
because they violated Section 21(e) of the Act by “causing or allowing the contamination of the
soil at the Property with hazardous substances.”
See
Chapco Ans. at 11; 415 ILCS 5/21(e)
(2000). In this case, Cole Taylor alleges that Chapco and Rowe violated the same provision of
the Act for the same conduct.
Chapco also alleges that the remedy requested by Cole Taylor in both proceedings
proves that the cases covered the same cause of action. Chapco Ans. at 11. In the former
proceeding before the Circuit Court, Cole Taylor requested Rowe and Chapco to pay $250,000
for the cost of remediating the site. In this matter, Cole Taylor requests the Board to order
Chapco and Rowe to undergo this remediation.
The Board finds that Chapco properly raised
res judicata
as an affirmative defense.
However, as stated above in the discussion concerning duplicitous complaints, the Board finds
that a case that seeks to resolve a breach of contract involves a different cause of action than
one that requests abatement and remediation of an environmental violation.
See
Illinois v.
State Oil Company, William Anest f/d/b/a S & S Petroleum Products,
et al.
, PCB 97-103, slip
op. at 6 (Aug. 19, 1999), citing Morton College Board of Trustees v. Town of Cicero, PCB
98-59, slip op. at 5 (Jan. 8,. 1998).
Additionally, the Board finds that the two cases involve different causes of action
because this matter covers an extended time frame beyond that found in the former breach of
contract suit.
Res judicata
does not bar this cause of action because the contract dispute only
involved conduct by Chapco between 1971 and 1999. In this case, Cole Taylor alleges the
Section 21(e) violation continued unabated up to the date that it filed its complaint with the
Board. Comp. at 3. Chapco admitted that it was in possession of the property after the July
16, 1999 final judgment by the Circuit Court, until January 31, 2001. Chapco Ans. at 3. For
these reasons, the Board strikes the affirmative defense of
res judicata
.
Collateral Estoppel
Chapco alleged in its last affirmative defense of collateral estoppel that Cole Taylor is
barred from re-litigating any issue of law or fact that is identical to those previously raised.
Collateral estoppel can preclude relitigation of a specific issue even where
res judicata
does not
apply. Jersey Sanitation, PCB 97-2, slip op. at 5. The Illinois Supreme Court has set three
minimum threshold requirements for applying collateral estoppel: (1) the issue decided in the
prior adjudication is identical with the one presented in the instant matter; (2) there was a final
judgment on the merits in the prior adjudication; and (3) the party against whom estoppel is
10
asserted was a party or a party in privity with a party to the prior adjudication. Jersey
Sanitation, PCB 97-2, slip op. at 5; ESG Watts, PCB 96-181 and 97-210, slip op. at 2-3, citing
Talarico v. Dunlap, 177 Ill. 2d 185, 191; 685 N.E.2d 325, 328 (1997).
There are exceptions to collateral estoppel. The doctrine must not be applied to bar a
party from presenting a claim or defense unless no unfairness results to the party being
estopped. Jersey Sanitation, PCB 97-2, slip op. at 6; ESG Watts, PCB 96-181 and PCB 97-
210, slip op. at 2-3, citing Talarico, 177 Ill. 2d at 191-192.
See also
Van Milligan v. Board of
Fire and Police Commissioners, 158 Ill. 2d 85, 96-97; 630 N.E.2d 830, 836 (1994).
Collateral estoppel also does not apply if the burden has shifted from the party against whom
the doctrine is to be applied to its adversary. Jersey Sanitation, PCB 97-2, slip op. at 6; citing
ESG Watts, PCB 96-181 and PCB 97-210, slip op. at 2-3 (citation omitted).
The Board finds that Chapco properly raised the issue of collateral estoppel as an
affirmative defense that asserts a new matter to defeat the right to bring this suit. However,
the Board does not have enough information to decide whether the affirmative defense has
merit. The Board accordingly does not make a finding as to the sufficiency of the claim at this
time. The parties may, at their own discretion, raise or dispute this issue in a subsequent
motion or at hearing.
CONCLUSION
The Board strikes eight of the nine affirmative defenses raised by Chapco, and all seven
affirmative defenses raised by Rowe. The Board finds that respondents improperly pled
affirmative defenses concerning: Section 31(e) and 33(c) criteria under the Act; act of God;
act of third parties; lack of material causation/contribution, and whether any release was
permitted by state or federal law.
See
415 ILCS 5/31(e), 33(c) (2000). The Board determines
that respondents properly raised affirmative defenses concerning
res judicata
and whether the
complaint was duplicitous, but finds that these defenses were without merit. The Board
reserves its ruling on the sufficiency of the remaining affirmative defense concerning collateral
estoppel, which the Board finds was appropriately pled in this matter. Although the Board
struck several of the affirmative defenses, Rowe and Chapco may address the issues raised in
their answers and subsequent filings, including those in its stricken affirmative defenses, in
future motions and at hearing.
IT IS SO ORDERED.
11
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on June 6, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
