BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
1
1
Complainant,
)
)
-
vs
-
1
PCB No. 06-177
)
(Enforcement
-
Used Tires)
SHERIDAN SAND
&
GRAVEL CO.,
)
an Illinois corporation,
)
1
Respondent.
1
NOTICE OF FILING
TO:
Kenneth Anspach
Bradley
P. Halloran, Esq.
Eight South Michigan Avenue
Hearing Officer
Suite 3400
Illinois Pollution
Control'Board
Chicago, Illinois 60603
James
R. Thompson Center, Suite 11-500
1 00 W. Randolph Street
Chicago, Illinois 60601
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the
Illinois Pollution Control Board by electronic filing the attached
REPLY TO RESPONDENT'S
RESPONSE TO COMPLAINANT'S MOTION TO
STRlKE FIRST AMENDED
AFFIRMATIVE DEFENSES, a copy of which is attached and hereby served upon you.
I
.'
Respectfully submitted,
PEOPLE OF THE STATE OF
ILLINOIS
LISA MADIGAN
Attorney General of the
BY:
SA A. VAL
si ant Attorney General
Environmental Bureau
69 W. Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-5361
DATE: April 17,2007
Electronic Filing, Received, Clerk's Office, April 17, 2007
t
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
)
)
v.
)
PCB No. 06-177
)
(Enforcement
-
Used Tires)
SHERIDAN SAND
&
GRAVEL CO.,
)
an Illinois corporation,
)
)
Respondent.
1
REPLY TO RESPONDENT'S RESPONSE TO COMPLAINANT'S MOTION
TO STRIKE FIRST AMENDED AFFIRMATIVE DEFENSES
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS ("People" or
"State"), by LISA
MADIGAN, Attorney General of the State of Illinois, and for its reply to
Respondent
SHERlDAN SAND
&
GRAVEL CO.'s Response to Motion to Strike First
Amended Affirmative Defenses, Complainant states as follows:
The Board's Order dated April 5,2007, allows the Complainant leave to reply to
Sheridan Sand
&
Gravel CO.'S Response to Complainant's Motion to Strike Affirmative
Defenses.
I.
RESPONDENT'S PURPORTED AFFIRMATIVE DEFENSES ARE LEGALLY
INSUFFICIENT
Defendant's First Affirmative Defense is Irrelevant
1.
Complainant repeats its Motion to Strike Sheridan Sand
&
Gravel Co.
("Respondent") First Affirmative Defense, and further notes that this affirmative defense is
directed toward an allegation that the State never alleges in its Complaint.
2.
On May 22,2006, Complainant filed its five-count Complaint in this matter. The
Complaint alleges violations of Sections
55(d)(l), 55(e), 55(g), 55.6(b), and 21(k) of the Illinois
Environmental Protection Act ("Act"), and violations of Sections
848.202(b)(4) and (5)'
Electronic Filing, Received, Clerk's Office, April 17, 2007
848.304(a) and (c), 848.305, and 848.601(a)(l) and (2) of the Illinois Pollution Control Board's
("Board") regulations.
3.
In its Response, Sheridan Sand
&
Gravel Co. ("Respondent") reiterates its
assertion that because the State failed to comply with Section
55.5(c) of the Act, 415 ILCS
5/55.5(c), the Attorney General was barred from filing its Complaint. Response, p. 3, 5-6.
Respondent further asserts that because "compliance with the requirements of Section 3
1(a) of
the Act, 41 5 ILCS
513 1 (a) is conditioned by statute upon compliance with Section 55.5 of the
Act, 415 ILCS
5155.5," "Illinois EPA failed to fulfill the requirements of Section 3 1(a), [and] it
also violated 3 1 (b) of the Act, 41 5 ILCS
513 1 (b)." Response, p. 4. Therefore, as Respondent
argues, the Board is without subject matter jurisdiction. Response, p. 4.
4.
Firstly, Respondent's defense under Section 55.5 of the Act is inappropriate since
Respondent's defense is not directed towards any claim for relief in the Complaint. Section
55.5(c) states that "prior to taking action pursuant to Title VIII for violation of subsection (a),
(b)
or (c) of Section 55 of the
Act,
the Agency.. .shall issue and serve upon the person complained
against a written warning notice..
."
415 ILCS 5/55.5(c) (2004). Ergo, whether Illinois EPA or
the State complied with the procedural guidelines of Section
55.5(c), is irrelevant in deciding
whether Respondent violated Sections
55(d)(l), 55(e), 55(g), 55.6(b), and 21(k) of the Act,
which are alleged in the Complaint. Thus, because Respondent's first affirmative defense is
directed to violations of Sections
%(a), (b) and (c) of the Act, none of which have been alleged,
it does not address the underlying cause of action, and is therefore, legally insufficient and should
be stricken and dismissed.
5.
Secondly, notwithstanding the inapplicability of Section
55.5(c) of the Act,
Illinois EPA did comply with the notice and referral process of Sections 3 1 and 55. Motion,
p.10-
Electronic Filing, Received, Clerk's Office, April 17, 2007
12. Indeed, Respondent even points out Illinois EPAYs compliance with the Act by stating that
"the Illinois EPA did, in fact, request the representation of the Office of the Attorney General for
all violations set forth in the Violation Notice and Notice of Intent." First Affirmative Defense,
71 8, Response, p. 4. Hence, because the Agency complied with the Act and Respondent's
defense does not attack the truth of the allegations in the Complaint, it should be stricken and
dismissed with prejudice.
6.
Thirdly, even if Illinois EPA did not comply with the notice and referral process,
the Attorney General has independent authority to bring an enforcement action pursuant to
Section 3
l(d) of the Act. 415 ILCS 513 l(d) (2004).
7.
Further, the Board has consistently ruled that the Attorney General's authority to
bring an enforcement action is not limited by the provisions of Section
3 l(a) and (b) of the Act.
See
Eagle-Picher-Bone PCB 99-152; People v. Chemetco, Inc., PCB 96-76 (July 8, 1998); People
v. Community Landfill Company, Inc., PCB 97-193 (Mar. 16, 2000). Moreover, the Board has
held that when the Attorney General brings a complaint "solely on behalf of the people," even if
the complaint is based on information obtained from the Agency, the complaint will not be
dismissed. Community Landfill Company, PCB 97-193 at
4. Thus, where the Attorney General
also filed its Complaint on her own motion, Respondent's defense is without merit, and the
Attorney General is authorized to proceed with enforcement of this case. Complaint, Count I,
71.
8.
Despite Board holdings and what is stated in the Complaint, Respondent presents
a fabrication of facts to the Board, by representing to the Board that the Attorney General did not
file the complaint on her own motion. Response, p. 14. Respondent asserts to the Board that the
Attorney General filed the Complaint
"[blased solely upon the referral of the Illinois EPA," and
"brought this action exclusively 'pursuant to the terms and conditions of Section 3 1 of the
3
Electronic Filing, Received, Clerk's Office, April 17, 2007
Illinois Environmental Protection Act." First Affirmative Defense, 719, Response, p. 14-15. This
is an outright misstatement of the facts.
9.
In the first paragraph of each count in the Complaint, the Complaint explicitly
1
states that the action "is brought on behalf of the People of the State of Illinois,
ex
rel.
LISA
MADIGAN, Attorney General of the State of Illinois,
or1 her own itlotion
and at the request of
the Illinois Environmental Protection Agency ("Illinois EPA"), against
SHERIDAN SAND
&
GRAVEL CO." Motion, p. 5, Complaint, 71.
10.
However, in spite of the Complaint's clear language, Respondent inappropriately
relies on People v. Chiquita Processed Foods, L.L.C., PCB 02-56 (Nov.
21,2002), a case in
which the Board confirmed the Attorney General's authority to bring a complaint on her own
motion. Response, p. 13-1 5.
11.
The Board in Chiquita held that the procedures of Section 3
1(a) and (b), while
being a precondition for referral by the Agency to the Attorney General, are not a limitation on
the Attorney General. People v.
Bar~er Ennineerinn, Inc., PCB 06-82 (Mar 16, 2006),
citing
Chiquita, PCB 02-56.
12.
In Chiquita, the Board did dismiss two
counts in the complaint because the
Agency failed to follow the procedures in Section
3 1 of the Act before referring the alleged
violation to the Attorney General. However, the Board noted in Chiquita that the Attorney
General was not bringing a complaint on its own motion, but rather pursuant to a referral
containing information provided by the Agency.
Chisuita, PCB 02-56 at 5. Here, the Attorney
General filed the Complaint pursuant to a proper referral by the Illinois EPA and on her own
motion as stated in paragraph 1 of the Complaint. Thus, contrary to what Respondent speciously
presents to the Board, the Complaint in this matter was properly brought in the name of the
Electronic Filing, Received, Clerk's Office, April 17, 2007
People and at the request of the Agency.
13.
Additionally, Respondent further argues that because
"[tlhere is no reference in
the Complaint to Section
42(e) of the Act, 415 ILCS 5/42(e), whatsoever!" the Attorney General
is prohibited
from proceeding with an action on her own motion. Response, p. 15. In Baraer,
where the action was
"brougl~t agaiizst tlze Respoitdeizt in the itanze of the People of the State of
Illinois, by Lisa
Madigan, Attorney Geiteral of tlte State of Illinois, on her owrl motiot~ aitd at the
request of the Illinois
EPA,"
almost verbatim as paragraph 1 of the State's Complaint, the Board
confirmed that the State may bring an enforcement action pursuant to Section 3
l(d) of the Act
and on the Attorney General's own motion regardless of the Agency's actions. Baraer, PCB
06-
82 at
6
(emphasis provided).
14.
Thus, where the set of facts here are analogous to Baraer, and not Chiquita,
Respondent's defense is illogical and should be stricken and dismissed with prejudice.
In
addition, by Respondent acknowledging that the allegations are valid, it has basically admitted
that its First Affirmative Defense should be stricken.
Respondent's Second Affirmative Defense is Without Merit
1.
As already explained in Complainant's Motion to Strike Respondent's Second
Affirmative Defense, Respondent's defense speaks to the issue of penalty, not the cause of
action.
2.
In its second affirmative defense, Respondent claims that "the completion of the
Suggested Resolution constitutes, by operation of law, completion of a corrective action pursuant
to Section
55.5(c) of the Act, 415 ILCS 5/55.5(c), and thereby has become a bar to enforcement
action against Sheridan." Response, p. 16.
3.
Contrary to how Respondent disguises compliance, an enforcement action does
Electronic Filing, Received, Clerk's Office, April 17, 2007
not automatically cease upon correction of a violation, nor has the Board or court ever interpreted
the Act as providing for this.
4.
Notwithstanding that Section
55.5(c) is irrelevant in this matter for reasons stated
above in paragraph 4, Respondent'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 405.
"compliance relates to the issue of
remedy and not to the cause of action."
Id
at 5.
5.
It is a well recognized rule by the Board, the agency charged with the primary
responsibility for interpreting the Act, 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. People v. Community Landfill Co., Inc., PCB No. 97-193, 1998
Westlaw 473246, at 4 (Aug. 6, 1998);
see also
People v. Geon Co. Inc., PCB No. 97-62, 1997
Westlaw 621493; at 3 (Oct. 2, 1997); People v. Douglas Furniture of California, Inc., PCB No.
97-1 33, 1997
Westlaw 235230, at 5 (May 1, 1997); People v. Midwest Grain Prods. of Illinois,
.,
Inc PCB No.' 97-179, 1997
Westlaw 530544, at 4 (Aug. 21, 1997);
see also
415 ILCS 5/5(b)
(2004) (authorizing the Board to "determine, define and implement the environmental control
standards applicable in the State.").
6.
This rule is also supported by at least one court decision.
In United States v.
Vitasafe Corporation, the Defendants first denied liability, then proceeded to plead six
affirmative defenses which included penalty mitigation arguments.
See
212 F. Supp. 397, 398
(S.D.N.Y. 1962). The
Vitasafe Court held, in relevant part, as follows (emphasis added):
The way in which defendant carries on its operations, and its claimed good faith,
have
no bearing on the question of whether it has [committed a violation]
. .
Defendant may urge its lack of intent to violate
. . .
in mitigation of the penalty. It
cannot do so, however, as a defense to liability
. . .
The pleading of such evidence
as an
affirnzative defense is unnecessary and improper.
Id.
Electronic Filing, Received, Clerk's Office, April 17, 2007
7.
The Board and at least one court have made it abundantly clear that an affirmative
defense which speaks to the imposition of a penalty rather than the underlying causes of action is
not an "affirmative defense" to that cause of action and should be stricken.
8.
Alternatively, Respondent's own interpretation of the statute is not written down
anywhere. Respondent points to no Board or court decisions interpreting Section
55.5(c), as it
has not been
interpreted anywhere, and as such, this argument is not rational.
9.
Therefore, Respondent's second purported affirmative defense, which speaks to
the penalty factors under Section
33(c) of the Act, is not an affirmative defense to the causes of
action in the State's Complaint, and should be stricken and dismissed, with prejudice.
Respondent's Third Affirmative Defense is Not an Affirmative Defense
1.
In addition to Illinois EPA7s compliance with the procedural guidelines under
Section 3 1 of the Act, Complainant also moved to strike this defense on the basis that Section 3 1
pre-filing requirements do not apply to the Attorney General.
2.
The Board has held the notice and meeting requirements of Section 3 1 apply only
to the Agency, not to the Attorney General.
Eagle-Picher-Bo~e, PCB 99-152 at 8. Rather than
repeat the Board's holding and the statutory authority authorizing the Attorney General to bring a
complaint on her own motion, the State reasserts its argument provided in its Motion and Reply.
See
Motion, p.5, 14- 15, Reply, 77,9- 14.
3.
Despite the Act authorizing the Attorney General to bring a complaint on her own
motion, the Board consistently affirming this authority, and paragraph 1 of the Complaint clearly
stating that the Complaint was filed by the Attorney General, "...on her own motion and at the
request of the Illinois Environmental Protection Agency ('Illinois
EPA')," Respondent declares
throughout fifteen (1 5) pages of its Response how and why the Illinois EPA violated Section
Electronic Filing, Received, Clerk's Office, April 17, 2007
3 l(b). In addition to this defense being irrelevant and a waste of the Board's time, the alleged
actions of Illinois EPA do not affect whether the alleged violations occurred or not.
4.
Moreover, the Board has held that the People do not have to plead in the
complaint or prove at hearing that the Agency complied with Section 3.1 of the Act. People v.
Crane PCB 01-76, slip op. at 7-8 (May 17,2001);
see also
People v. Panhandle Eastern Pipe Line
a,
PCB 99-191, slip op at 3 (Nov. 16, 2000).
5.
Section 3 1 of the Act acts as a precondition only to the Illinois
EPAYs
referral of
an action to the Attorney General's office for enforcement, and does not bar the filing of an
action by the Attorney General on her own motion. Respondent's affirmative defense is
therefore legally insufficient and should be stricken.
11.
CONCLUSION
WHEREFORE, for the reasons stated, the Complainant, PEOPLE OF THE STATE OF
ILLINOIS, requests that the affirmative defenses of the Respondent be stricken, with prejudice.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN, Attorney General
69 W. Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-5361
Electronic Filing, Received, Clerk's Office, April 17, 2007
CERTIFICATE OF SERVICE
I, VANESSA A. VAL, an Assistant Attorney General, do certify that I caused to be
mailed this 17th day of April 2007, a true and correct copy of the attached REPLY TO
RESPONDENT'S RESPONSE TO COMPLAINANT'S MOTION TO STRIKE FIRST
AMENDED AFFIRMATIVE DEFENSES and Notice of Filing by certified mail with return
receipt requested to the persons listed on the said Notice of Filing, and depositing same with the
United States Postal Service located at
69 West Washington Street, Chicago, Illinois, 60602.
nvironrnental Bureau
Electronic Filing, Received, Clerk's Office, April 17, 2007