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LEGAL BACKGROUND ON AFFIRMATIVE DEFENSES

The Board’s procedural rules provide 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 hearing.” 35 Ill. Adm. Code 103.204(d).

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).

The Board has also defined an affirmative defense as 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 the

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

). Furthermore, “[t]he 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 COMPLAINT’S COUNTS

The complaint concerns respondent’s property bordering a small unnamed stream that

leads to Wonder Lake, located at the intersection of Westmoor Drive and East Oakwood Drive in

Wonder Lake, McHenry County. The People allege that respondent violated Sections 12(a) and

12(d) of the Environmental Protection Act (Act) (415 ILCS 12(a) (2004)) in 2005 by (1) causing,

allowing or threatening to cause water pollution, and (2) depositing large piles of fill material on

his property in such place and manner so as to create a water pollution hazard. For the alleged

violations in the two-count complaint, the People seek a cease and desist order and civil penalties

of not more than the statutory maximum.

Count I of the complaint alleges that Mathews caused or tended to cause water pollution

in violation of Section 12(a) of the Act, 415 ILCS 5/12(a) (2004). In summary, the People allege

that:

From at least April 22,2005 through May 11,2007, or on dates better known to

Respondent Mathews, the Respondent deposited large piles of Fill Material onto

the Site in a manner that allowed Fill Material and silt-laden storm water to

flow into the stream that leads to Wonder Lake. Such contaminants altered, or

threatened to alter, the physical, chemical, thermal, or biological properties of the

stream at the Site, and created, or were likely to create, a nuisance.

Respondent, Mathews, by his actions and omissions as alleged herein, caused,

threatened, or allowed contaminants consisting of Fill Material and silt-laden

storm water to enter the waters of the State, the stream that runs into Wonder

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Lake, thereby causing water pollution. Comp.at 5, paras. 28-29 (capitalization in

original).

Count II of the complaint alleges that Mathews created a water pollution hazard in

violation of Section 12(d) of the Act, 415 ILCS 5/12 (d) (2004):

From at least April 22, 2005 through at least May 11,2007, on dates better known

to Respondent, Respondent Mathews deposited contaminants, consisting of Fill

Material, onto land near the stream and storm ditch that lead to Wonder Lake.

By placing these contaminants near the stream and storm ditch where they

could be exposed to storm water and run off into waters of the State,

Respondent Mathews created a water pollution hazard and thereby violated

Section 12(d) of the Act, 415 ILCS 5/12(d) (2004). Comp. at 6, paras. 28-29

(capitalization in original).

AFFIRMATIVE DEFENSES

First Affirmative Defense: “No Contamination”

Mathews’ first affirmative defense is that there is no contamination alleged, since “soil

and stone” are naturally occurring and not contaminants. Since there is no allegation that

Matthews placed either substance in the stream adjoining the site, respondent contends the

complaint fails to state a cause of action for either water pollution or creation of a water pollution

hazard. Ans. at 5.

The People contend that Mathews’ assertion should be stricken as an improper

affirmative defense “as it is a simply a denial of the facts alleged in the Complaint and provides

no case law to support it”, explaining that an “affirmative defense must raise new matter that, if

true, somehow defeats complainant’s claim.” Mot. at 3, and cases cited therein.

The Board is persuaded by the People’s arguments, agreeing that Mathews has

improperly characterized a denial as an affirmative defense. In striking this contention as an

affirmative defense, the Board in no way precludes the respondent from presenting any relevant

evidence and argument that no pollution occurred.

Second Affirmative Defense: Act of God

Mathews next argues, “storm waters are an act of God, and not within the control of

respondent.” Ans. at 6. Mathews’ defense is that since he had not altered the site in any way to

force “stone or soil” into water, the complaint fails to state a cause of action.

Id.

The People respond that an “act of God” is not an affirmative defense under the Act, and

request that the invalid affirmative defense be stricken. Mot. at 6, citing, Perkinson v. IPCB, 187

Ill. App. 3d 689, 694, 543 N. E.2d 901, 904 (3rd Dist. 1989) (citing Freeman Coal Mining Corp

v. IPCB, 21 Ill. App. 3d 157, 313 N.E.2d 616 (5th Dist. 1974).

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The Board strikes this second defense; Mathews fails to cite any precedent in support of

his contention in an area where case law is long established. But, in so holding, the Board does

not preclude Matthews from attempting to properly present relevant evidence and arguments

concerning weather or other “acts of God” as mitigating evidence. Section 33(c) of the Act

charges the Board to “take into consideration all the facts and circumstances bearing upon the

reasonableness of the emissions, discharges or deposits”, and lists various specific factors as

among those for consideration. 415 ILCS 5/33(c) (2006). Section 42(h) also directs the Board to

consider specific aggravating and mitigating factors when determining the amount of any civil

penalties to be imposed once violations are found. 415 ILCS 5/42(h) (2006).

Third Affirmative Defense: Third Party Intervention

Mathews argues that the complaint fails to allege “any measurement of ‘silt-laden storm

water’ actually entering any water as a result of his onsite placement of “soil and stone”. Ans. at

6. Stating that “sedimentation in Wonder Lake is a natural occurrence, not attributable to any

action of respondent”, Matthews argues this count should be dismissed.

Id.

The People contend that the third affirmative defense is legally and factually insufficient,

arguing that any existing pollution of Wonder Lake is irrelevant to the complaint. Moreover, the

People argue, even if Mathews could prove that all run off from the site was caused by a third

party, he could still be found liable under the Act.

See

Mot. at 4-5, citing,

inter alia

, Perkinson,

187 Ill. App. 3d at 694.

Persuaded by the People’s argument, the Board strikes this improper defense.

Fourth Affirmative Defense: Mitigation

Mathews argues that:

issues complained of by Complainant have thus been ameliorated by Respondent

and there is no evidence of past water pollution and no probability of future water

pollution, so the case should be dismissed. Ans. at 7.

Mathews does not cite to specific paragraphs of the complaint or to precedent to support his

contentions. The factual basis for this defense appears to be portions of the complaint alleging

that improperly maintained silt fencing had been installed by someone in 2006, and that in 2007

the site had been graded by someone and had significant weed cover. Comp. at 3, paras. 16-19.

The People suggest that this defense should be stricken as unsupported, and legally and

factually insufficient. Mot. at 5-6. The People note that, under the Act, present compliance is

not an affirmative defense to enforcement for past violations.

Id.

The Board strikes the fourth purported affirmative defense. Mathews is free to properly

present any mitigating evidence or arguments relevant to the factors of Sections 33(c) and 42(h)

of the Act. 415 ILCS 5/33(c) and 42(h) (2006).

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Fifth Affirmative Defense: Laches

Mathews poses laches as his last affirmative defense. Mathews states that the complaint

recites that complainant first knew of the presence of the onsite “silt and stone” on April 22,

2005. Mathews states that the Illinois Environmental Protection Agency (Agency) and/or the

McHenry County Soil and Water Conservation District conducted 4 more site investigations on

specific dates between April and August 2005, and that during that time respondent installed silt

fencing and graded portions of his property. Respondent notes that the next Agency inspections

were August 30, 2006 and May 11, 2007, and that the complaint was not filed until June 2007.

Ans. at 8. Mathews contends that the lengthy time between the first site inspection and the filing

of the action prevents him from proving that the “soil and stone” on his property did not violate

the Act as alleged in the complaint so that he “is now impaired in defending this action through

the long delays by Complainant”.

Id.

at 8-9. Mathews accordingly believes that the People

“should be barred by the doctrine of laches from proceeding in this matter”.

Id.

at 9.

The People assert that Mathews’ laches defense should also be stricken as legally and

factually deficient. The People review the definition of laches:

an equitable principle that bars an action where: (1) one party has delayed

unreasonably in bringing a lawsuit

(City of Rolling Meadows

v.

Nat

'I

Adver. Co.,

228 Ill. App. 3d 737, 593 N.E.2d 551, 557 (1st Dist. 1992)); and (2) because of the

delay the Respondent has been misled or prejudiced, or has taken a different course

of action than it might otherwise have taken absent the delay.

Patrick Media Group,

Inc.

v.

City of Chicago,

255 Ill. App. 3d

1,626

N.E.2d 1066, 1071 (1st Dist. 1993).

Ans. at 6 (italics in original).

Complainant asserts that Mathews has failed to plead specific facts that the State has unreasonably

delayed, that any delay has prejudiced respondent, or that Mathews has taken a different course of

action as a result of any actions by complainant. The People characterize the answer as listing a

series of conclusory statements that lack the specificity necessary in a pleading, and urge that the

laches defense be stricken. Alternatively, the People argue that laches should not be applied in this

action by the People to enforce the environmental laws, in the absence of “unusual or extraordinary

circumstances”. Mot. at 7-8, and cases cited therein.

The Board declines to strike the laches defense, the only true affirmative defense raised by

Mathews’ Answer. While finding that the defense is not as well pled factually or legally as might be

preferable, Mathews’ Answer raises the issue sufficiently to allow Mathews to attempt to develop

and plead a case at hearing. But, the Board cautions, as the People correctly point out, that laches is

not often found to apply in environmental enforcement actions.

CONCLUSION

For the reasons stated, the Board grants the People’s motion in part, and strikes the first

four of the five alleged affirmative defenses set forth in Mathews’ Answer. None of the first four

alleged defenses appropriately attack complainant’s legal right to bring an action, and the Board

accordingly finds that all four purported affirmative defenses are not actually proper affirmative

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defenses. But, on the issues concerning the stricken defenses, Mathews is free to properly

present any mitigating evidence or arguments relevant to the factors of Sections 33(c) and 42(h)

of the Act. 415 ILCS 5/33(c) and 42(h) (2006).

However, the Board denies the People’s motion to strike Mathews’ asserted laches

defense. While reminding respondent of the difficulty of proving such an affirmative defense in

an environmental enforcement action, the Board allows Mathews to develop and attempt to

prove this affirmative defense.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on November 1, 2007, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board