ILLINOIS POLLUTION CONTROL BOARD

September 21, 2006

 

PEOPLE OF THE STATE OF ILLINOIS,

 

Complainant,

 

v.

 

FIRST COUNTRY HOMES, L.L.C., an

Illinois limited liability company,

 

Respondent.

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PCB 06-173

(Enforcement - Water)

      

 

ORDER OF THE BOARD (by G.T. Girard):

 

On May 16, 2006, complainant filed a two-count complaint against the respondent, First

Country Homes, L.L.C., an Illinois Limited Liability Company, (First Country), alleging

violations of the Environmental Protection Act (Act) and the Board’s regulations.

See

415 ILCS

5/1

et. seq

. (2004) and 35 Ill. Adm. Code 309. The allegations in the complaint revolve around

the respondents’ sewer construction activities, development and ownership of approximately 30

vacant residential lots, located in Section 22, Township 34 North, Range 13 East, in Monee, Will

County, known as Country Meadows – Phase 8 (Site).

 

Count I of the complaint alleges that First Country built sewer lines without a

construction permit in violation of Section 12(a) and (b) of the Act and Section 309.202(a) of the

Board’s regulations for water pollution. 415 ILCS

Count II of the complaint alleges that First Country threatened the discharge of contaminants

from its Site to the storm water sewer system of the Village of Monee without first obtaining a

general National Pollutant Discharge Elimination System (NPDES) storm water permit in

violation of Section 12(f) of the Act and Section 309.102(a) of the Board’s water pollution

regulations. 415ILCS 5/12(f) (2004); 35 Ill. Adm. Code 309.102(a).

 

PROCEDURAL BACKGROUND

 

On June 1, 2006, the Board accepted the complaint for hearing. In response to the

complaint, First Country filed an answer to the complaint and two affirmative defenses (Ans.) on

July 13, 2006. On July 27, 2006, the People filed a motion to dismiss First Country’s affirmative

defenses (Mot.). On August 18, 2006 First Country responded to the motion (Resp.). For the

reasons discussed below the Board grants the motion to dismiss both of the alleged affirmative

defenses.

 

MOTION TO DISMISS AFFIRMATIVE DEFENSES

 

Standard of Review

 

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If a pleading does not admit the opposing party’s claim, but instead attacks the

sufficiency of that claim, it is not an affirmative defense. Worner Agency v. Doyle

,

121 Ill. App.

3d 219, 222-23, 459 N.E.2d 633, 636 (4th Dist. 1984). In a valid 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 Co., PCB 97-

193, slip op. at 3 (Aug. 6, 1998). An affirmative defense is a “response to a plaintiff’s claim

which attacks the plaintiff’s legal right to bring an action, as opposed to attacking the truth of

claim.” Farmer’s State Bank v. Phillips Petroleum Co., PCB 97-100, slip op. at 2 n. 1 (Jan. 23,

1997) (quoting

Black’s Law Dictionary

). “The Board has previously held that affirmative

defenses that concern factors in mitigation are not an appropriate affirmative defense to a claim

that a violation has occurred.”

  

People v. Texaco Refining and Marketing, Inc., PCB 02-3, slip

op. at 5 (Nov. 6, 2003); citing People v. Geon Co., Inc., PCB 97-62, (Oct. 2, 1997); People v.

Midwest Grain Products of Illinois, Inc., PCB 97-179 (Aug. 21, 1997).

 

The validity of an independent contractor affirmative defense turns on the question of

whether “respondent is in such a relationship to the transaction that it is reasonable to expect him

to exercise control to prevent pollution.” Texaco Refining and Marketing, Inc., PCB 02-3, slip

op. at 5; citing EPA v. James McHugh Construction Co., PCB 71-291 (May 17, 1972). “The

Board has found that owners’ use of independent contractors may relieve the owner of liability

under the Act, but owners can still be liable for actions of independent contractors.”

Id.

at 5

(Nov. 6, 2003); citing People v. Wood River Refining Co., a division of Equilon Enterprises,

L.L.C., PCB 99-120, slip op. at 10 (Aug. 8, 2002).

   

First Country’s Alleged Affirmative Defenses

 

First Country alleges two affirmative defenses. First Country first alleges that the People

fail to sufficiently set forth all of the required information, including, specifically, the events,

nature, extent and strength of discharges or emissions and consequences alleged to constitute

violations, pursuant to Section 103.204(c) of the Board’s rules. 35 Ill. Adm. Code 103.204(c).

The second affirmative defense lists and applies the factors set forth in Section 33(c) of the Act

(415 ILCS 5/33(c) (2004)), which the Board uses in making its orders and determinations. The

33(c) factors provide that the Board must consider “facts and circumstances bearing upon the

reasonableness of the emissions, discharges or deposits involved,” when making determinations

regarding violations and penalties. 415 ILCS 5/33(c) (2004).

 

First Country, under its second affirmative defense, alleges that an independent

contractor was responsible for the alleged violations. However, First Country does not argue an

independent contractor affirmative defense, but instead argues that an independent contractor’s

actions are relevant to the enumerated Section 33(c) factors in the second affirmative defense.

First Country alleges that its failure to comply with the Act and the Board’s regulations was the

fault of an independent contractor, Aqua.

See

Ans. at 10-11. First Country alleges, under the

second affirmative defense, that in attempt “to leverage [First Country] to execute an extension

of its service agreement [with Aqua], Aqua withheld its signature from the permit application.”

Ans. at 11.

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ARGUMENTS AND BOARD ANALYSIS

 

First Alleged Affirmative Defense: Failure to State a Claim

 

The People contend that First Country’s first alleged affirmative defense is legally

insufficient and must be struck as a matter of law. Mot. at 1. According to the People, First

Country does not admit the claim and assert a new matter that defeats the claim. The People

contend that First Country’s first affirmative defense merely attacks the sufficiency of the claim

and does not attack the complainant’s legal right to bring an action, and therefore, is an invalid

affirmative defense.

See

Farmer’s State Bank, PCB 97-100, slip op. at 2 n. 1

;

Worner Agency, at

222-23, 636. If the respondent wishes to attack the sufficiency of the claim, argue the People,

First Country should do so through a motion to strike or dismiss, not by answering the complaint

and asserting an affirmative defense. Mot. at 3.

 

In response to the motion to dismiss, First Country maintains that the affirmative

defenses were properly pled. According to First Country, the affirmative defenses “go to the

facts of the matter which will be specifically realized at hearing.” Resp. at 2.

 

The Board agrees with the People that rather than admitting the People’s allegations in

count I, First Country instead challenges whether the claim was adequately pled. The Board is

persuaded by the People’s arguments and finds that First Country’s first alleged affirmative

defense is legally insufficient. Therefore, the Board strikes the first affirmative defense.

 

Second Alleged Affirmative Defense: Section 33(c) Factors

 

The People claim that First Country’s use of the Section 33(c) factors as a second alleged

affirmative defense is entirely inappropriate. Mot. at 4. The People state that the Section 33(c)

factors can only affect the imposition of a monetary penalty, but do not address whether or not

the alleged violations occurred.

Id

. The People state that a well recognized rule is that a

“defense which speaks to the imposition of a penalty, rather than the underlying cause of action,

is not an ‘affirmative defense’ to that cause of action” and should be stricken. Mot. at 5; citing

People v. Community Landfill Co., Inc., PCB 97-193 (Aug. 6, 1998); People v. Geon Co. Inc.,

PCB No. 97-62 (Oct. 2, 1997); People v. Douglas Furniture of California, Inc., PCB 97-133

(May 1, 1997); People v. Midwest Grain Prods. of Illinois, Inc., PCB 97-179 (Aug. 21, 1997).

Accordingly, contend the People, First Country’s second alleged affirmative defense is invalid

and should be dismissed with prejudice.

 

As First Country did with the first alleged affirmative defense, First Country maintains

that the second affirmative defense was properly pled and puts the People on notice as to the

defenses First Country intends to raise at hearing. Resp. at 2. First Country argues that the

second affirmative defense “asserts that Respondent was prevented from compliance with EPA

due to various factors outside of Respondent’s control.” Resp. at 2.

 

Section 33(c) matters are “potentially relevant to the question of the appropriate terms of

a final order[.]” Environmental Site Developers, Inc. v. White & Brewer Trucking, Inc., PCB 96-

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180, slip op. at 26 (Nov. 20, 1997). The Board considers the Section 33(c) factors in

determining, first, what to order the respondent to do to correct an on-going violation, if anything,

and second, whether to order the respondent to pay a civil penalty. The factors bear on the

reasonableness of the circumstances surrounding the violation, such as the character and degree

of any resulting interference with protecting public health, the technical practicality and economic

reasonableness of compliance, and whether the respondent has subsequently eliminated the

violation.

 

The Board finds that First Country’s claim that the allegations are moot because of

subsequent compliance is not an affirmative defense, but rather a mitigation factor.

See

People v.

Texaco Refining and Marketing, Inc., PCB 02-3, slip op. at 4-5. “Compliance relates to the issue

of remedy and not to the cause of action.”

Id.

at 5. The Board agrees with the People that while

the Section 33(c) arguments set forth by the First Country may be relevant to the Board’s

determination of whether a remedy is appropriate, these mitigating factors do not constitute an

affirmative defense.

 

The arguments First Country raises, under the Section 33(c) factors, do not attack the

complainant’s legal right to bring an action, and therefore, do not constitute an affirmative

defense.

See

Farmer’s State Bank v. Phillips Petroleum Co., PCB 97-100, slip op. at 2 n.1

(Jan. 23, 1997). However, First Country is free to raise the Section 33(c) factors and related facts

for the Board’s consideration in making its final determination as to whether a remedy or penalty

are appropriate. The Board finds the second alleged affirmative defense is also not properly pled.

 

First Country’s second affirmative defense alleges that an independent contractor’s

actions were relevant to the Section 33(c) factors it argues as an affirmative defense. However,

First Country did not argue an independent contractor affirmative defense. Therefore, the Board

will not make a determination as to whether First Country could have reasonably been expected

“to exercise control to prevent pollution[]” at this time. Texaco Refining and Marketing, Inc.,

PCB 02-3, slip op. at 5; citing Wood River Refining Co., PCB 99-120, slip op. at 10. The Board

strikes the second affirmative defense.

 

CONCLUSION

 

Because First Country has failed to properly plead affirmative defenses, the Board grants

the People’s motion to dismiss. First Country’s first alleged affirmative defense is not a valid

affirmative defense because the defense merely attacks the sufficiency of the claim and fails to

attack the complainant’s legal right to bring an action. The respondent’s second alleged

affirmative defense is not a valid affirmative defense because the defense does not attack

complainant’s legal right to bring an action. The Section 33(c) factor in respondent’s second

affirmative defense are considered by the Board in making final determinations as to whether a

remedy is appropriate, but do not constitute an affirmative defense. The Board directs the hearing

officer to proceed expeditiously to hearing.

 

IT IS SO ORDERED.

 

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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on September 21, 2006, by a vote of 4-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board