BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
-
vs
-
) .
PCB NO. 06-177
)
(Enforcement
-
Used Tires)
SHERIDAN SAND
&
GRAVEL CO.,
)
an Illinois corporation,
Respondent.
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
100
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 MOTION TO STRIKE
AFFIRMATIVE DEFENSES, a copy of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
Environmental Bureau
188
W. Randolph St., 2oth Floor
Chicago, Illinois 60601
(312) 814-5361
DATE: November 13,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
1
v.
)
PCB No. 06-177
)
(Enforcement
-
Used Tires)
SHERIDAN SAND
&
GRAVEL CO.,
)
an Illinois corporation,
1
.
1
Respondent.
)
MOTION TO DISMISS AFFIRMATIVE DEFENSES
Now comes Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, pursuant to Section 101.506 of the Illinois
Pollution Control Board's Procedural Regulations and Section 2-61
5 of the Illinois Code of Civil
Procedure, 735 ILCS 512-615
(2004), for an order dismissing Respondent SHERIDAN SAND
&
GRAVEL CO.'s Affirmative Defenses to the Complaint, and states as follows:
I.
INTRODUCTION
On May 22,2006, Complainant, People of the State of Illinois ("State" or "People"), filed
a five-count Complaint against
Sheridan Sand
&
Gravel Co. ("Sheridan" or "Respondent")
alleging violations of the Illinois Environmental Protection Act, 415 ILCS 511
et
seq. ("Act") and
the Illinois Pollution Control Board's ("Board") regulations thereunder.
On September 7,2006, the Board denied Sheridan's Motion to Dismiss Complaint. On
October 13,2006,
Sheridan filed its Answer and Affirmative Defenses to the Complaint
("Answer").
11.
LEGAL STANDARD
Under Illinois case law, the test for whether a defense is affirmative and must be pled by
the defendant is whether the defense gives color to the opposing party's claim and then asserts
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
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);
Vroegh v. J
&
M Forklift, 165 111.2d 523,65 1 N.E.2d 121, 126 (1995); People v. Community
Landfill Co., PCB 97-1 93 (August 6, 1998). In other words, an affirmative defense confesses or
admits the allegations in the complaint, and then seeks to defeat a plaintiffs right to recover by
asserting new matter not contained in the complaint and answer.
Where the defect complained about appears from the allegations of the complaint, it is
not an affirmative defense and would be properly raised by a motion to dismiss. Corbett v. Devon
Bank, 12
Ill.App.3d. 559, 569-570,299 N.E.2d 521, 527 (1st Dist. 1973). An affirmative
,
defense must do more than offer evidence to refute properly pleaded facts in a complaint.
Pweller v. Cohen, 282 Ill.App.3d 89, 668 N.E.2d 1144, 1149 (lSt Dist. 1996), appeal denied,
169
111.2d 588 (1996); Heller Equity Capital Corp. v. Clem Environmental Corp., 272 Ill. App.
3d 173, 178, 596
N.E.2d 1275, 1280 (lSt Dist. 1993); People v. Wood River Refining Company,
PCB 99-120 at 6 (August 8, 2002); Farmer's State Bank v.
Philli~s Petroleum Co., PCB 97-100
(January 23, 1997) (affirmative defense does not attack truth of claim, but the right to bring a
claim).
A simple refutation of allegations in the complaint fails to establish an affirmative
defense.
Id.
Thus, the issue raised by an affirmative defense must be one outside of the four comers of
the complaint. The Board rule regarding affirmative defenses provides, in pertinent part, 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 the hearing.
35
Ill. Adm. Code 103.204(d). In addition, Section 2-613(d) of the Illinois Code of Civil
Procedure, 735
ILCS 512-613(d) (2004), is instructive, providing that "[tlhe facts constituting any
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
affirmative defense.. .must be plainly set forth in the answer or reply." The facts establishing an
affirmative defense must be pled with the same degree of specificity required by a plaintiff to
establish a cause of action. International Insurance Co. v.
Sargent
&
Lund~, 242 Ill.App.3d 614,
609
N.E.2d 842, 853 (1st Dist. 1993).
Dismissal for failure to state a cause of action is appropriate only where it clearly appears
that no set of facts can be proven under the pleadings that will entitle the pleader to recovery.
Douglas Theater
Corporation v. Chicago Title
&
Trust Com~any, 288 Ill.App.3d 880, 681
N.E.2d 564, 566 (1'' Dist. 1997). As with a Section 2-615 motion, a dismissal based on certain
defects or defenses is proper if no set of facts may be proven
by which the pleader can recover.
Griffin v. Fluellen, 283
Ill.App.3d 1078,670 N.E.2d 845, 849 (1'' Dist. 1996).
A pleading must be dismissed for failure to state a cause of action if the facts alleged,
when taken as true, do not set forth a legally recognized claim
upon which relief can be granted.
Kirchner v. Greene, 294 Ill.App.3d 672,691 N.E.2d 107, 1 12 (1'' Dist. 1998).
111.
RESPONDENT'S AFFIRMATIVE DEFENSES ARE LEGALLY INSUFFICIENT
A.
Respondent's First Affirmative Defense.
Respondent's First Affirmative Defense to all five counts of the Complaint claims that
because the Illinois Environmental Protection Agency ("Illinois EPA" or
"Agency") failed to comply
with Section
55.5(c) of the Act, 415 ILCS 5/55.5(c) (2004), the Agency thereby failed to comply
with the requirements of Sections 3
l(a) and (b) of the Act, 415 ILCS 5/3l(a) and (b) (2004). Based
upon these assertions, Respondent concludes that this matter has been improperly brought before the
Board because the Illinois EPA has failed to fulfill the requirements of Sections
31(a) and (b)
pursuant to Section 3
l(c)(l) of the Act, 41 5 ILCS 513 l(c)(l) (2004).
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
This affirmative defense has no legal merit because Section 55.5(c) ofthe Act does not apply
in the present case. As part of its affirmative defense, Respondent claims that "Illinois EPA never
sent
Sheridan a written warning notice pursuant to Section 55.5(c) of the Act, 415 ILCS 5/55.5(c)."
f
3 Affirmative Defense. Respondent's argument raises a completely irrelevant issue in response to
the State's Complaint because none of the violations that Section
55.5(c) specifically applies to are
alleged in the Complaint.
Section
55.5(c) provides, in pertinent part, as follows:
Notwithstanding the provisions of subsection (b) of this Section,
prior to taking
action
pzirsziant to Title VIIIfor violation of szibsection (a),
(b)
or (c) of Section 55
of this Act,
the Agency or unit of local government shall issue and serve upon the
person complained against a written warning notice informing such person that
the Agency or unit of local government intends to take such action.
415
ILCS 5/55.5(c) (2004) (emphasis provided). Thus, only before the Illinois EPA may refer
violations of
Section 55(a),
(b)
or (c) of the Act
to the Attorney General for enforcement, is the
Agency required to comply with the notice provision of Section
55.5(c). Otherwise, for any other
alleged violation of Title
XIV of the Act, the Illinois EPA is required to comply with Title VIII,
i.e., Section 3 1 of the Act, as the Agency has done.
In the Complaint, and as confirmed by the Board in its Order accepting the Complaint for
hearing, "the People allege that
Sheridan Sand
&
Gravel Company violated Section 21(k);
55(d)(l), (e), and (g); and 55.6(b) ofthe Act (415 ILCS 5/21(k); 55(d)(l), (e), and (g); and
55.6(b) (2004)) and 35 Ill. Adm. Code 848.202(b)(4) and (b)(5), 848.305, and 848.601(a)."
People of the State of Illinois v. Sheridan Sand
&
Gravel Co., PCB 06-177 (June 1,2006) at 1;
see also
Complaint. Ergo, the Complaint contains no alleged violations of Section 55(a), (b) or
(c) of the Act whatsoever. Similarly, Respondent points to no allegation in the Complaint in this
matter which seeks to impose liability for a violation of
55(a), (b) or (c) of the Act.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
Respondent's argument does not address the State's underlying cause of action, rather it
argues the notification procedure pertaining to violations of Section
55(a), (b) and (c) of the Act,
none of which have been alleged in the State's Complaint. Indeed, where no such allegations of
Section
55(a), (b) and (c) of the Act are contained in the Complaint, Illinois EPA is not required
to comply with Section
55.5(c) of the Act, and Respondent's First Affirmative Defense should be
dismissed. Respondent does not, and cannot possibly, plead any set of facts that would support
this defense to the allegations in the complaint. Therefore, the dismissal must be with prejudice.
B.
Respondent's Second Affirmative Defense.
Respondent's second affirmative defense alleges that because Sheridan took certain
actions to address violations at the Site, the State's Complaint is barred by reason of Section
55.5(c) of the Act. 718 Affirmative Defense. Firstly, for reasons already discussed above in
Section A of this motion, Respondent's argument is without merit since Section
55.5(c) of the
Act does not apply in this matter. Section
55.5(c) applies only to "violation of subsection (a), (b)
or (c) of Section 55 of this Act," and no such violations have been alleged in the Complaint. 415
ILCS
5/55.5(c) (2004). The State realleges and incorporates by reference herein its argument to
Respondent's first affirmative defense as its argument to the second affirmative defense.
Secondly, subsequent compliance is not a legally recognized defense.
An affirmative defense
must raise a defense to liability to be proper.
Respondent argues as part of its second affirmative defense that "the Violation Notice
contained an explanation, styled as 'Suggested Resolutions,' of two alternative actions, either one
of which Illinois EPA informed
SHERlDAN would resolve the alleged violations," and that
"Sheridan's completion of the Suggested Resolution constituted a timely completion of
corrective action under Section
55.5(c) of the Act, 415 ILCS 5/55.5(c), precluding any
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
enforcement action by the Illinois EPA under Sections 3 1 (a) and (b) of the Act, 41 5 ILCS 3 l(a)
and (b), or by the Attorney General under Section 3 l(c)(l) of the Act, 41 5 ILCS 3 l(c)(l)." 7712,
18 Affirmative Defense. Respondent's position is directly contradicted by
Section 33(a) of the
Act.
Section
33(a) of the Act provides, in relevant part, as follows:
It shall not be a defense
to findings of violations of the
provisions of the
.Act or Board regulations or a bar to the
assessment of civil penalties
that the person has come into
coirlpliailce sztbseqlieiit to the violation,
except where such
action is barred by any applicable State or federal statute of
limitation.
415 ILCS
5/33(a) -(2004)(emphasis provided). As Section 33(a) explicitly sets forth restrictions
on what may constitute a defense to violations of the Act, subsequent compliance is not an
affirmative defense. Therefore, Respondent's second affirmative defense is legally insufficient
and as such, should be dismissed.
Alternatively, Respondent's purported defense, that
Sheridan "had completed the
requested Suggested Resolution in its entirety," may be more properly characterized as a
response to the penalty factors set forth under Section
33(c) of the Act. 714 Affirmative Defense.
Section
33(c) sets forth the factors that the Board shall consider in determining whether a civil
penalty is appropriate in a particular case:
(c)
In making its orders and determinations, the Board shall take into
consideration all the facts and circumstances bearing upon the
reasonableness of the emissions, discharges or deposits involved
including, but not limited to:
(i)
the character and degree of injury to, or interference with the
protection of the health, general welfare and physical property of
the people;
(ii)
the social and economic value of the pollution source;
(ii)
the suitability or unsuitability of the pollution source to the area in
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
which it is located, including the question of priority of location in
the area involved;
(iv)
the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits
resulting from such pollution source; and
(v)
any
subseqzlent compliance.
41
5 ILCS 5/33(c) (2004)(emphasis provided). Consequently, Respondent's use of the Section
33(c) factors as an affirmative defense is entirely inappropriate. Section 33(c) sets forth factors
which, if proven, could only affect the imposition of a monetary penalty. These aggravating and
mitigating factors do not address whether or not the alleged violations of the Act have occurred.
Not only is "subsequent compliance" listed as a factor that might mitigate any penalty in Section
33(c)(v), it is explicitly rejected as a defense to a violation by Section 33(a) of the Act.
Further, the Board has consistently held that a purported defense, which speaks to the
imposition of a penalty and not the cause of action, is not an affirmative defense to that cause of
action.
People of the State of Illinois v. Midwest Grain Products of Illinois, Inc., PCB 97-179
(August 2
1, 1997) (citing People of the State of Illinois v. Douglas Furniture of California. Inc.,
PCB 97-1 33 (May 1, 1997); see also People of the State of Illinois v. Geon Corporation, PCB
No. 97-62 (October 2, 1997). As demonstrated above, Respondent's second affirmative defense
actually attempts to raise a mitigation factor, and does not defeat the State's underlying cause of
action. Therefore, Respondent's purported defense is legally insufficient and should be
dismissed with prejudice, as a matter of law.
Respondent's purported affirmative defense is nothing more than an argument. See
especially
771 7, 18 Affirmative Defense. Respondent attempts to argue that the "Illinois EPA
informed Sheridan" that completion of either of the Suggested Resolutions "would resolve the
alleged violations," and that
"[bly operation of law, the Violation Notice constituted a written
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
warning notice and the Suggested Resolution constituted a corrective action under the provisions
of Section
55.5(c) of the Act, 415 ILCS 5/55.5(c)." 7712, 17 Affirmative Defense. Respondent,
however, provides no statutory authority and cites to no affirmative statement proffered by
Illinois EPA to support its purported defense. Rather, the facts are that Illinois EPA explicitly
stated in the Violation Notice that,
"[dlue to the nature and seriousness of the alleged violations,
please be advised that resolution of the violations may require the involvement of a prosecutorial
authority for purposes that may include, among others, the imposition of statutory penalties."
See
Exhibit A.
The Second District Appellate Court has held that argumentative matters contained in
an
affirmative defense do not require a reply. In re Marriage of Sreenan, 81 Ill.App.3d 1025,402
N.E.2d 348, 35 1 (2nd Dist. 1980); Korleski v. Needham, 77 Ill.App.2d 328,222 N.E.2d 334, 339
(2nd Dist. 1966. As clearly demonstrated above, Respondent's purported affirmative defense is
merely unsupported argument, to which the State, however,
has.a counterargument. Under
Sreenan and Korleski, Respondent's purported defense does not require a reply and is not a
proper affirmative defense as a matter of law. Therefore, Respondent's argument that subsequent
completion of corrective actions renders cessation of prosecutorial activities by the Agency is a
misstatement of facts and
an
erroneous attempt at establishing an affirmative defense, and should
be stricken.
B.
Respondent's Third Affirmative Defense.
Respondent's third affirmative defense to all five counts is not an affirmative defense but
rather a bare assertion that "each of the allegations set forth in the Violation
Notice.were made
without reasonable cause."
727 Affirmative Defense. This assertion falls well short of constituting a
legally sufficient affirmative defense.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
This affirmative defense merely denies the facts as alleged in the Complaint. Respondent's
argument that the "allegations set forth in the Complaint were made without reasonable cause" is not
an affirmative defense.
727 Affirmative Defense. The assertions that the State's allegations were
made without reasonable cause is solely a conclusion proffered by Respondent.
An affirmative
defense essentially admits the allegations in the complaint, and then asserts a new matter which
defeats a plaintiffs right to recover.
Vroegh v. J
&
M Forklift, 165 111.2d 523,65 1 N.E.2d 121,126
(1995).
An affirmative defense must do more than offer evidence to refute properly pleaded facts in
a complaint.
Pweller v. Cohen, 282 Ill.App.3d 89,668 N.E.2d 1144,1149 (1'' Dist. 1996), appeal
denied, 169 111.2d 588 (1996). Facts establishing an affirmative defense must be pled specifically, in
the same manner .as facts in a complaint. International Insurance Co. v. Sargent
&
Lundy, 242
Ill.App.3d 614,609 N.E.2d 842,853 (1" Dist. 1993). Where the Board has specifically adopted fact
pleading requirements for affirmative defenses in 35
Ill. Adm. Code 101.204(d), a party is required
to allege enough facts to establish the affirmative defense. Therefore, it is not sufficient to merely
state conclusions of law and conclusions of fact.
See
Knox College v. Celotex, 88 111.2d 407, 430
N.E.2d 976 (1981).
Furthermore, the allegations in this so-called defense are the same as those in its two previous
affirmative defense, only this time accompanied with the conclusion that the "Complaint is
contradicted by Illinois
EPA's own Narrative Inspection Report, which, in turn, is contradicted by
Sheridan's affidavits."
726 Affirmative Defense. It is well settled that a simple denial of a fact
pleaded in the Complaint is not a sufficient affirmative defense. Pweller at 1149;
see also
Heller
Equity Capital
Corn., People v. Wood River Refining; Co, and Farmers State Bank. An affirmative
defense must raise new matter that, if true, somehow defeats a complainant's claim. It is not simply
the restatement of a denial or other response made in the body of the answer.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
In support of its affirmative defense, Respondent cites to affidavits it presented to "Illinois
EPA stating that no more than 175-1 80 tires had been present at the Site."
724 Affirmative Defense.
Respondent's assertion merely refutes and denies the amount of tires recorded by the Illinois EPA.
As stated above, the facts establishing an affirmative defense must be pled with specificity.
Consequently, this assertion falls well short of constituting a legally sufficient affirmative defense.
Presenting affidavits to contradict what has been alleged against it is not an affirmative defense, but
rather a denial of the State's allegations that goes to the merits. This purported defense is merely
Respondent's analysis of the facts, or more accurately, the representation of Respondent's selective
version of facts versus the State's set of facts, which is not
an affirmative defense but rather only
pure legal argument, and wholly improper as
an affirmative defense.
Notwithstanding the third affirmative defense's insufficiency, and without waiving its
argument on this point, the State finds Respondent's basis for its defense somewhat confusing since
it appears to support the Complaint's causes of action. Respondent's affidavits attesting to no more
than 175-1 80 tires at the site, only provide further support to the violations alleged in the Complaint.
For example, Respondent specifically cites to Count
I of the Complaint as part of its basis for
its defense, which alleges violation of Section
55(d)(1) of the Act. 125 Affirmative Defense. Count I
is based on the presence of at least 50 used tires at the Site. Section 55(d) of the Act, 415 ILCS
5/55(d) (2004), provides, in pertinent part, as follows: "Beginning January 1,1992, no person shall
cause or allow the operation of: (1) a tire storage site which contains more than
50 used tires..
."
712
Complaint. Similarly, Count
II
alleges violations of Section 55(e) of the Act and sections
848.202(b)(4) and (b)(5) of the Board regulations, which are based on sites "at which more than 50
used or waste tires." 415 ILCS
5/55(e) (2004), 35 Ill. Adm. Code 848.202(b)(4) and (b)(5). 1117,
21 Complaint. Thus, even taking as true Respondent's allegations in this defense, no legally
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
recognized defense would be available. Respondent's purported affirmative defense is illogical since
Respondent contends that at least 175 tires were at the Site, and the violations alleged in the
Complaint are based upon more than fifty (50) used tires being present at the Site.
See
124
Affirmative Defense. An affirmative defense admits the claim and raises a defense which defeats it.
By providing facts that support causes of action in the Complaint, Respondent has again failed to
meet the requirements for proper pleading and its third Affirmative Defense must be dismissed.
Respondent's purported affirmative defense that "the allegations set forth in the Complaint
were made without reasonable cause" also does not meet the fundamental requirement that an
affirmative defense gives color to a plaintiffs claim and asserts new matter that defeats it.
129
Affirmative Defense. In fact, this purported affirmative defense does not assert any new matter,
much less new matter that might defeat the State's claim. Respondent does not give color to the
State's cause of action by merely stating an unsupported conclusion and then requesting expenses.
Respondent's affirmative defense is legally insufficient and should be dismissed as a matter of law.
Furthermore, Respondent's allegations do not appear to raise a new matter that, if true, would
defeat the claims in the Complaint. The Complaint alleges that "Illinois EPA inspectors observed
approximately 500 used and waste tires at the Site."
See
Complaint;
see also
125 Affirmative
Defense. Respondent denies this in its response to paragraph 4 of Count
I. Raising this denial again
as an affirmative defense, assuming that this is what the third affirmative defense is attempting to do,
is not proper. As cited above, an affirmative defense must do more than simply deny well-pleaded
facts. Moreover, Respondent previously attempted to dismiss the Complaint based on a similar
argument in its Motion to Dismiss, but that entire motion was denied by the Board. Simple denials
of allegations made in the Complaint cannot also be affirmative defenses. Moreover, the exact
number of used tires at the Site, is an issue for the trier of fact to determine.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
In addition, Respondent's demand for expenses and attorney's fees is not a basis for an
affirmative defense and is inappropriate to raise under an affirmative defense.
130 Affirmative
Defense. Such a demand does not go to the claim but is rather a form of relief that is
inconsequential to a finding of Respondent's liability. Again, an affirmative defense is one that
gives color to the claim of the opposing party and then asserts new matter by which the apparent
I
right is defeated. Condon v. American Telephone and Teleaaph Company, Inc., 210 Ill.App.3d
701, 709, 569 N.E.2d 5 18, 523 (2nd Dist. 1991). Respondent's demand does not assert matter by
which the
State's'causes of action are defeated. Rather, its purported affirmative defense seeks
specific relief in the form of expenses and attorney's fees. The matter of fees and expenses is
properly addressed following, and pursuant to findings contained within,
a final order. To raise
this issue at the pleading stage is premature, illogical and clearly improper. Respondent's
affirmative defense does not defeat nor even address the State's underlying causes of action as it
does not go to liability.
Notwithstanding the inappropriateness of its affirmative defense, Respondent's misplaced
demand for expenses has also been made in the wrong forum. Pursuant to the Illinois
Administrative Procedure Act, the same provision Respondent cites, such a request is to be made
to the Agency, not the Board.
728 Affirmative Defense.
This affirmative defense, like the others raised by Respondent, is merely argument. As
previously pointed out above, the Appellate Court has held that argumentative matters contained in
an affirmative defense do not require a reply.
In re Marriage of Sreenan, 81 Ill. App. 3d 1025,402
N.E.2d 348, 351 (2nd Dist. 1980); Korleski v. Needham, 77 Ill. App. 2d 328,222 N.E.2d 334,339
(2"d Dist. 1966). Applying another fundamental principle governing the pleading of affirmative
defenses, Respondent can plead no set of facts that would entitle it to a defense of "allegations
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
without reasonable cause" because that is not a legally recognized defense. For all of the foregoing
reasons, Respondent's purported Third Affirmative Defense does not require a reply, and should be
dismissed with prejudice.
C.
Respondent's Fourth Affirmative Defense.
Respondent's fourth affirmative defense to all five counts is that because the Illinois EPA
"failed to fulfill its statutory obligation" under Section 3
1(b) of the Act, "the Attorney General
was barred
from filing a complaint against Sheridan with the Board pursuant to Section 3 1 (c)(l)
of the Act." 7734, 38 Affirmative Defense. This purported defense is a self-serving analysis of
the facts and an erroneous interpretation of the Act by Respondent, and as such, is not an
affirmative defense. It does not contain allegations of fact but rather is pure legal argument, and
is wholly improper as an affirmative defense.
Without waiving its claim that Respondent's Section 3 1 defense is legally deficient, the
State contends that, contrary to what Respondent claims, Illinois EPA fulfilled its statutory
obligations under Section 3 1 of the Act. Section 3
l(b) of the Act provides, in relevant part, as
follows:
For alleged violations that remain the subject of disagreement between the
Agency and the person complained against following fulfillment of the
requirements of subsection (a) of this Section, and as
a precondition to the
Agency's referral or request to the Office of the Illinois Attorney General
. . .
for
legal representation regarding an alleged violation that may be addressed pursuant
to subsection (c) or (d) of this Section or pursuant to Section 42 of this Act, the
Agency shall issue and serve, by certified mail, upon the person complained
against a written notice informing that person that the Agency intends to pursue
legal action: Such notice shall notify the person complained against of the
violations to be alleged and offer the person an opportunity to meet with
appropriate Agency personnel in an effort to resolve any alleged violations that
could lead to the filing of a formal complaint. The meeting with Agency personnel
shall be held within 30 days of receipt of notice served pursuant to this subsection
upon the person complained against, unless the Agency agrees to a postponement
or the person notifies the Agency that he or she will not appear at a meeting
within the 30 day time period.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
41
5
ILCS
513
1(b) (2004). Thus, as a precondition to Illinois EPA's referral under Section
3
1,
the Agency must provide notice and the opportunity for the violator to meet to discuss the
violations.
Accordingly, pursuant to Section
3
1 Illinois EPA provided notice of the violations that
form the basis of every count of the Complaint, and held a meeting with the Respondent.
Similarly, Respondent does not contest that notice was provided, nor does it contest that a
prefiling meeting was held between the Agency and Respondent. Indeed, Respondent confirms
these facts in its affirmative defense. "Following the receipt of the Notice of Intent (which
incorporated the alleged violations set forth in the Violation Notice),
Sheridan requested a
meeting with Illinois EPA pursuant to Section
3
1 (b) of the Act, 41
5
ILCS
513
1
(b). That meeting
was scheduled for September 27,2005 at the offices of Illinois EPA in Des Plaines, Illinois."
13
1
Affirmative Defense. "Sheridan did, in fact, meet with Illinois EPA at the offices of Illinois EPA
on September 27,2006. None of the alleged violations set forth in the Violation Notice was
resolved."
732
Affirmative Defense. Therefore, in accordance with Section 3 l(b) of the Act, and
as Respondent confirms in its affirmative defense, Respondent indisputably issued the August
26,2005 Notice of Intent to Pursue Legal Action prefiling correspondence and met with
Respondent. Hence, in light of the statutory authority, and the Agency's uncontested compliance
with the requisite prefiling conditions, Respondent's fourth affirmative defense must be seen for
what it is, namely, a non sequitur, which therefore, should be appropriately stricken by this
Board.
The facts as pled by Respondent,
i.e.,
detailing the actions of the Agency as it went
through the Section
3
1 process in this case, taken as true, quite obviously do not and cannot
support a defense that the Agency failed to comply with Section
3
1.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
Despite the plain language of the statute, Respondent proceeds to argue that Section 3 l(b)
of the Act "imposes upon Illinois EPA thereby a statutory obligation of good faith negotiation"
and that
"[ilf and only if Illinois EPA meets that statutory obligation may it request legal
representation by the Illinois Attorney General pursuant to Section 3 1 (e) of the Act."
729
Affirmative Defense. Simply stated, Section 3l(b) of the Act does not say this.
Be that as it may, Respondent proceeds to colorfully claim in its affirmative defense that
"it was the policy of Illinois EPA not to resolve any alleged violations," that "no such resolution
occurred despite Sheridan's efforts to resolve such alleged violations by Sheridan's own good
faith negotiation, not reciprocated by Illinois EPA," and that Illinois EPA "made no effort to
resolve any of the alleged violations."
773 1-33 Affirmative Defense. These allegations constitute
nothing more than a self-serving narration by the Respondent, and do not constitute an
affirmative defense.
Through this defense, Respondent seeks to invent a requirement of "good faith," which
when applied to the Agency evidently means doing whatever Respondent requests, not what the
Agency in its discretion deems appropriate. Even if the facts as Respondent has attempted to lay
out are true, the Act does not mandate the Agency's conduct. Nowhere in the Act or Board
regulations does it state that the Illinois EPA must act in "good faith" at a meeting with the
offending party before it can refer alleged violations to the Attorney General.
Indeed, Respondent provides no statutory authority or case law that conveys such a
standard, simply because, none exists. Respondent purely interjects this "good faith" standard
into the Section 3
1(b) process, then weakly argues that the Agency has violated this nonexistent
standard. However, Respondent does not give color to the State's causes of action by attacking
the conduct of the Agency, and pleads an improper affirmative defense.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
Moreover, even if an affirmative defense based on this so-called "good faith" standard
was available to Respondent, Respondent fails to allege in detail facts relative to specific
procedural requirements with which the Illinois EPA failed to comply. As stated above,
Respondent must plead an affirmative defense with the same degree of specificity required in
order to allege a cause of action. Respondent merely asserts the conclusion that the Agency
failed to conduct its meeting with "good faith" and that Section
3 1(b) provides for this standard.
The defense is completely devoid of factual allegations, and thus clearly lacks the specificity
required for pleading a claim or a defense.
As stated above, this affirmative defense is merely argument by Respondent.
An
argument is not an affirmative defense.
See
Sreenan and Korleski. Since Respondent's
affirmative defense does not defeat the State's underlying causes of action, the defense is legally
insufficient and should be dismissed.
The second portion of Respondent's fourth affirmative defense, which alleges that
because "Illinois EPA failed to fulfill the requirements of Section
3 l(b) of the Act, 415 ILCS
513
1(b), the Attorney General was barred from filing a complaint against Sheridan with the
Board pursuant to Section
3 l(c)(l) of the Act, 415 ILCS 3 l(c)(l)," should be dismissed as a
matter of law, with prejudice.
738
Affirmative Defense. Under Section 3 1, the Illinois EPA may
refer violations to the Attorney General for enforcement which it believes cannot be resolved
without the involvement of the Attorney General. Where Section
3 l(b) of the Act provides that a
precondition to Illinois
EPA's referral to the Attorney General for enforcement under Section 3 1
is to provide notice and the opportunity for the violator to meet to discuss the violations, this
precondition
does not
apply to the Attorney General's own filing of a complaint.
Where a regulation is clear on its face, the court must give effect to the language in the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
provision. Dean Foods Co. v. Illinois Pollution Control Board, 143 Ill.App.3d 322,334,492
N.E.2d 1344, 1353 (2nd Dist. 1986). There is no language in the Act that subjects the Attorney
General to the Section 3 1 requirements. Nowhere in Section 3 1 are any restrictions placed on the
Attorney General's authority to proceed with an enforcement case and file a complaint on her
own initiative. People of the State of Illinois v. Eagle-Picher-Boge, L.L.C., PCB 99-152 (July 22,
1999), slip op. at 4.
Recent Board decisions have decided the issue of whether a cause of action is defeated by
the Illinois
EPAYs failure to comply with Section 3 1 procedural requirements, and whether the
Attorney General may prosecute a case exclusive of procedural requirements prescribed by
Section 3 1. This issue is not one of first impression in Illinois, and has been previously decided
during administrative enforcement actions brought before the Board. Numerous Board decisions
have held that Section 3 1 does not apply to the Attorney General.
See,
Eagle-Picher-Boae,
L.L.C., PCB 99-152 (July 22, 1999), slip op. at 6 (stating that the notice requirements of Section
3 1 do not apply to the Attorney General);
see also,
People v. Heuerinann, PCB 97-92 (Sept. 18,
1997) (stating that the notice requirements were not intended to bar the Attorney General from
prosecuting an environmental violation). Respondent simply ignores or dismisses this well-
established rule in its affirmative defense.
In People v. Geon Corporation., PCB 97-62, 1997 WL 62 1493 (October 2, 1997), the
Board denied the Defendant's motion to dismiss the State's complaint on the basis, in part, that
Section 3 1 did not apply to the Attorney General's Office filing on its own motion. Thus, Illinois
EPA may refer alleged violations of the Act and the regulations to the Attorney General pursuant
to Section 3 1 of the Act, 41 5
ILCS 513 1 (2004), and the Attorney ~eneral may allege violations
of the Act and regulations on her own.
See
People v. Peabodv Coal Co., PCB 99-134, (June 5,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
2003) citing Eager-Picher-Bo~e, PCB 99-1 52.
Moreover, Section
42(e) of the Act grants the Attorney General independent authority to
bring an action alleging violations of the Act on her own motion or at the request of the Illinois
EPA.
See
415 LCS 5/42(e) (2004). A review of the State's complaint reveals that this action
was brought by the Attorney General on
her
owl1 nlotion, as well as at the request of the Illinois
EPA.
See,
T[
1 Complaint. In each Count of the Complaint filed herein, the allegations are that
"this Complaint is brought on behalf of the People of the State of Illinois,
ex
rel.
LISA
MADIGAN, Attorney General of the State of Illinois, on her own motion and at the request of
the Illinois Environmental Protection Agency ("Illinois EPA"), against Sheridan."
Id.
The State
made the decision to style her pleadings in the fashion indicated to identify a filing both by the
Attorney General on her own motion
at the request of the Agency.
Section
3
1 applies to the Illinois EPA but not the Attorney General. Accordingly, Section 3 1
does not prevent the Attorney General
from maintaining an action on her own behalf, and she may do
so on her own initiative, without
a request by the Illinois EPA. Therefore, Respondent's argument
that the Attorney General is prohibited from bringing an action on her own behalf and at the request
of the Illinois EPA is invalid. The plain language of the Act, legislative history and legal precedent
directly contradict Respondent's affirmative defense based on Section 3 1 of the Act. For all the
reasons cited above, Respondent's Fourth Affirmative Defense should be dismissed as a matter of
law, with prejudice.
D.
Respondent's Fifth Affirmative Defense.
Respondent argues in its fifth affirmative defense to Count
V that Section 848.601(a)(l)
of the Board regulations is "inherently unenforceable and invalid." 35 Ill. Adm. Code
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
848.601(a)(l);
f
3 Affirmative Defense. As demonstrated above, simply stating a legal
conclusion is not an affirmative defense.
See
Knox College.
Respondent does not have the authority to unilaterally deem an Agency's rule "invalid."
Administrative interpretations of a statute made by an agency charged with administering that statute
are entitled to considerable deference
inless clearly
erroneozts, arbitrary or ltnreasonable.
Winnetkans Interested in Protecting the Env't. v. Illinois Pollution Control Bd., 55 Ill.App.3d 475,
479-80,370
N.E.2d 1 176, 1 179 (lSt Dist. 1977) (emphasis provided);
see also
Church v. State, 164
111.2d 153, 162, 646 N.E.2d 572, 577 (Ill. 1995) (Illinois Supreme Court held "A court will not
substitute its own construction of a statutory provision for a reasonable interpretation by the agency
charged with the
staiute's administration"). Thus, where aparty is required to allege enough facts to
establish the affirmative defense, Respondent's bare assertion that Section 848.601 (a) of the
Board's
rules is invalid fails as an affirmative defense, and should be dismissed.
Moreover, Respondent's defense, that Section 848.601 is "unfinished and incomplete,
and, therefore, invalid," mirrors the argument, verbatim, that Respondent provided in its Motion
to Dismiss. Complaint;
73 Affirmative Defense. "In arguing that dismissal of Count V is
appropriate, the respondent alleges that the allegations are unfinished and incomplete, rendering
the allegations unenforceable." People v.
Sheridan Sand and Gravel, PCB 06-177, slip. op at 4
(Sept. 7,2006). The Board found
"[tlhe complainant asserts that the respondent's objections are
unfounded, as the complaint need not set forth the evidence of alleged violation.
The Board
agrees with the complainant.
"
Sheridan Sand and Gravel, PCB 06-177, slip. op at 4. (emphasis
provided). Thus, where the Board has previously dismissed the same argument alleged by
Respondent in its Motion to Dismiss, Respondent's Fifth Affirmative Defense should be
dismissed here as well.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
Respondent's affirmative defense is also irrelevant and improperly pled. Sections 29 and
41 of the Act (415 ILCS
5/29,41 (2004)) prohibit challenges of rules in enforcement proceedings
of issues "that could have been raised in a timely petition for review" under those sections. 415
ILCS
5/41(c) (2004). Section 41 of the Act provides, in pertinent part in subsections (a) and (c):
a)
Any party to a Board hearing,
. . .
[and] any party adversely
affected by a final order or determination of the Board
. . .
may
obtain judicial review, by filing a petition for review within 35
days from the date that a copy of the order or other final action
sought to be reviewed was served upon the party affected
. . .
under
the provisions of the Administrative Review Law
. . .
except that
review shall be afforded directly in the Appellate Court
. . .
Review
of airy
iule or regulation pronzrtlgated bjr the Board shall not be
linrited by tIris section but nray also be Irad as provided in Section
29 of this Act.
c)
No challenge to the validity of a Board order shall be made in any
enforcement proceeding under Title
XII of this Act [penalties] as to
any issue that could have been raised in a timely petition for review
under this Section. 415 ILCS
5/41(a), (c) (2004) (emphasis
provide).
Section 29 of the Act addresses judicial review of regulations adopted by the Board:
a)
Any person adversely affected or threatened by any rule or
regulation of the Board may obtain a determination of the validity
or application of such rule or regulation by petition for review
under Section 41 of this Act.
b)
Action by the Board in adopting any regulation for which judicial
review could have been obtained under Section 41 of this Act shall
not be subject to review regarding the regulation's validity or
application in any subsequent proceeding under Title
VIII
[enforcement], Title IX [variances] or Section 40 [permit appeals]
of this Act. 415 ILCS
5/29(a), (b) (2004).
According to these provisions of the Act, Respondent is precluded
from attacking the
validity of the Board's regulation in its affirmative defense. However, from the pleadings it is
apparent that Respondent is not seeking a declaration of the validity or applicability of the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
regulation; Respondent is seeking to have the regulation declared invalid as applied to
Respondent. Notwithstanding Respondent's irrelevant defense, the Act directs "any person
adversely affected or threatened by any rule or regulation of the Board" to file a petition for
review under Section 41 of the Act. 415 ILCS
5/29(a) (2004). Consequently, the time, if at all,
for Respondent to raise objections about the validity or application of Section
848.601(a) is
through this mechanism, not by way of an affirmative defense.
Lastly, Respondent's demand for expenses pursuant to Section
10-55(c) of the Illinois
Administrative Procedure Act
("APA"), is not a basis for an affirmative defense and is
'inappropriate to raise at this juncture.
74-5 Affirmative Defense. Such a demand does not go to
the claim but is instead a form of relief that has no bearing on a finding of Respondent's liability.
Further, Respondent's purported affirmative defense seeks specific relief in the form of expenses,
which is dependent on a court's order, rather than another administrative agency. Under the
APA:
In any case in which a party has any administrative rule
invalidated
by
a court
for
any reason, including but not limited to the agency's exceeding its statutory
authority or the agency's failure to follow statutory procedures in the adoption of
the rule, the court shall award the party bringing the action the reasonable
expenses of the litigation, including reasonable attorney's fees. 5 ILCS 100110-
55(c) (emphasis added)
.
Here, no court has invalidated the Board's rule. To raise this issue at the pleading stage is
clearly improper. Respondent's affirmative defense does not defeat nor even address the State's,
underlying causes of action as it does not go to liability. Thus for the reasons stated above,
Respondent's
Fifth Affirmative Defense is legally insufficient, and as such, should be dismissed
with prejudice.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
IV.
CONCLUSION
WHEREFORE, for the reasons stated, the Complainant, PEOPLE OF THE STATE OF
ILLINOIS, requests that the affirmative defenses of the Respondent be dismissed, with prejudice.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN, Attorney General
BY:
I
Environmental Bureau
188
W. Randolph St., 2oth Flr.
Chicago, Illinois 60601
(312) 814-5361
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006
CERTIFICATE OF SERVICE
I, VANESSA A. VAL, an Assistant Attorney General, do certify that I caused to be
mailed this 13th day of November 2006, a true and correct copy of the attached MOTION TO
STRICK 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
188 West Randolph Street, Chicago, Illinois, 60601.
Environmental Bureau
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 13, 2006