LAW OFFICES OF
CAREY S. ROSEMARIN, P.C.
847-897-8000
VIA ELECTRONIC FILING
Illinois Pollution Control Board
Clerk's
Office
500 SKOKIE BOULEVARD. SUITE 510
NORTHBROOK. ILLINOIS 60062
June 5, 2009
James R. Thompson Center, Suite 11-500
100
West Randolph Street
Chicago, Illinois
6060
I
http://www.ipcb.state.il.us/
Fax : 847-9 1
9-4600
ajm@roscmarinlaw.
com
Re:
Elmhurst Memorial Healthcare, et al. v. Chevrol/ U
.S
.A. II/c.
(PCB 2009-066)
This law finn represents Elmhurst Memorial Healthcare and Elmhurst Memorial Hospital in
the above-referenced case. Please find enclosed a
di spositive motion directed to the Board titled
"Complainants' Response to Affirmative Defense Number I and Motion to Strike Affirmative
Defenses
II Through IX." A Notice of Filing and Certificate of Service are enclosed as well.
Encl.
cc:
Via Regular Mail
Joseph
A. Girardi
Robert
B. Christie
Henderson
&
Lyman
Attorneys for Chevron U.S.A. Inc.
175 W. Jackson Blvd. , Suite 240
Chicago, Illinois 60604
Very truly yours.
at
AndreJ., J. Marks
Electronic Filing - Received, Clerk's Office, June 5, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ELMHURST
MEMORIAL HEAL THCARE a
nd
)
ELMHURST MEMORIAL HOSPITAL
)
)
Complainants,
)
)
v.
)
)
PCB 09-66
(Citizen's Enforcement - Land)
CHEVRON U.S.A. INC.,
)
)
Respondent.
)
NOTICE
OF FILING
To :
Joseph
A.
Girardi
Robert
8. Christie
Henderson
&
Lyman
Attorneys for Chevron
U.S .
A. Inc.
175 W. Jackson Blvd., Suite 240
Chicago, Illinois
60604
j girardi@henderson-Iymal1.com
rchrist ie@henderson-Iyman.com
Gary. 1. Blankenship
Board Member
Bradley
P. Halloran
Hearing Officer
Illinois
Pollution Control Board
James
R. Thomson Center, Suite 11-500
100 W. Randolph Street
Chicago,
Illinois 6060 I
PLEASE
TAKE NOTICE that I have on June 5
, 2009 el
ectronically filed with the Office of the
Clerk
of the Pollution Control Board COMPLAINANTS' RESPONSE TO AFFIRMATIVE
DEFENSE
NUMBER I AND MOTION TO STRIKE AFFIRMATIVE DEFENSES
II
THROUGH IX, a copy of which is hereby served upon you.
Carey S. Rosemarin (ARDC No. 6181911)
Andrew
J. Marks (ARDC No. 6286796)
Law Offices
of Carey S. Rosemarin, P. C.
500 Skokie Boulevard, Suite 510
Northbrook, IL 60062
847-897-8000
312-896-5786 (fax)
csr@rosemarinlaw.com
ajm@rosemarinlaw.com
Elmhurst Memorial Healthcare
Elmhurst
Mem
r r..a
l . OSI1'lal
!
/
, 1
By:
-..(
I
Jjk
.
,U,\kiJ:liWl'It::--
--
-
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ELMHURST
MEMORIAL HEAL THCARE and
)
ELMHURST MEMORIAL HOSPITAL
)
)
Complainants,
)
)
PCB 09-66
v.
)
)
(Citizen's Enforcement - Land)
CHEVRON U.S.A. INC.,
)
)
Respondent.
)
COMPLAINANTS' RESPONSE TO AFFIRMATIVE DEFENSE NUMBER I AND
MOTION TO STRIKE AFFIRMATIVE DEFENSES II THROUGH IX
Complainants, Elmhurst Memorial Healthcare and Elmhurst Memorial Hospital
(collectively referred
to as "EMl
-
I"), by and through their attorney, the Law Offices of Carey S.
Rosemarin, P.c., responds to Respondent'
s Affirmative Defense Number I and moves this Board
for an order striking Respondent's Affirmative Defenses
II
through IX.
INTRODUCTION
EMH's Complaint seeks to r
ecover remediation costs from Respondent Chevron U.S.A.
Inc. ("Chevron"). Texaco Inc. ("Texaco") operated a gasoline filling station at 701 South Main
Street, Lombard, Illinois (the "Pr
operty") from approx imately 1958 to 1
977. (EMH purchased
the Property
in 2005 .
) Texaco's liabilities have devo l
ved upon Respondent as a result of various
corporate transactions.
Respondent asserted nine (9) affirmative defenses. EMH responds
to Affirmative
Defense Number I, and moves
to strike Affirmative Defenses
II
through IX because they do not
satisfy the l
egal standard the Board has applied
to affirmative defenses.
Page 2 of 14
RESPONSE TO AFFIRMATIVE DEFENSE NUMBER I
Aff.Dcf.I.
~1.
Paragraph 3 of the Complaint alleges that Chevron Co rporation (n
ot the
Respondent) m
erged with Texaco Inc.
Response: EMH admits that paragraph 3
of the Complaint alleges: "In October 200 1
,
Ch
evron Corpor
ation
merged with Texaco." EM j
-
j denies any and all oth
er allegations contained
in Af
f.Def.J
~ I.
Aff
.Dcf.1.
~2.
Pamgraph 4 of the Complaint all eges that by vi rtue of the alleged merger,
any liabilities arising from Texaco Inc. '
s pre-200 1 acti ons relevant to this Complaint became the
liabilities of Ch
evron Corporatio n.
Responsc: EMH admits that Paragraph 4 of the Complaint alleges: "By virtue of the
merger, any
liabilities arising from Texaco'
s pre-200 1 action
s relevant t
o thi s Complaint became
the liabilities
of Chevron Co rporati on. On informati
on and belief
, following the 2001 m
erger
,
Chevron Corporation effectively transferred su
ch li abi lities to its subsidiary, Respondent
Ch
evron." EMI-I denies any and all oth
er allegations contained in Aff
.Def.!
~2 .
Aff.Dcf.1.
~3.
Paragr
aph 4 of the Complaint f
urther alleges, on information and b
elief
only, that following the alleged merger
, Chevron Corporation effectively transferred the
liabilities of Texaco Inc. to Respondent. Paragraph 4 does not allege any facts upon whi ch
Compl ainants formed their information and beli ef to make the allegati
on
s.
Response:
EMI-I admits that Paragraph 4 of the Complaint alleges: "By virtue of the
merger
, any liabilities arising from Texaco'
s
pre-2001 actions relevant to this Complaint became
the liabilities
of C
hevron Corporation. On informati
on and belief, following the 200 I merger,
Chevron Corporati
on effective l
y transferred sllch li abilities to its subsidiary, Respondent
Chevron.
" EMI-I denies any and all other all egati
ons co ntained in Aff.Def.l '13.
Page 3 of 14
Aff.Dcf.I.
~4.
In fact, on October 9, 2001 a transaction took place in which:
(a) The common stock
of Texaco Inc. was acquired by a subsidiary of Chevron
Corporation; and
(b) As a
result Texaco Inc. became and remains a wholly-owned, indirect, subsidiary of
Chevron Corporation.
Response:
EMH does not have sufficient knowledge to form a belief as to the truth of the
allegations
of Aff.Def.I
~4
and, as such, denies sam
e.
Aff.Def.I.
~5.
Texaco Inc. did not merge into or with Chevron Corporation.
Response:
EMH denies the allegations of Aff.Def.I
~5.
Aff.Def.1.
~r6.
No liabilities of Texaco Inc. were transferred to or assumed by
Respondent
in this transaction.
Response:
EMH denies the allegations of Aff
.
Def.!
~6.
Aff.Def.I.
~7.
As a result, any liability of Texaco Inc. for the actions alleged in the
Complaint
is not the liability of Respondent.
Response:
EMH denies the allegations of Aff.Def.I
~7.
Wherefore, Respondent respectfully requests that the Illinois Pollution Control Board
enter an order finding in favor of Respondent and against the Complainants on each and every
claim for relief requested by Complainants, and for such other and further relief as the Board
may deem appropriate.
Response:
EMH adopts and relies on its responses to Aff.Def.!
~~
1 through 7 and denies
that Respondent's requested relief i
s appropriate.
Page 4 of 14
MOTION TO STRIKE
AFFIRM A
TIVE DEFENSES II THROUGH IX
LEGAL STAN DARD
To assert a valid affirmativ e defense Respondent must assert new facts or l
egitimate l
egal
arguments that, if true, will defeat EMI
-
l' s cl
aims even if all of the allegations in the complaint
are true.
People v. Community Landfill Co
.,
PCB 97-193, slip op. at 3 (Aug. 6, 1998). "Any
facts constituting an affirmative def
ense must be plainl y 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 I 03.
204(d) (emphasis added).
A valid affirmative defen se admits the allegations in the compl
aint and asserts a new
matter which precludes
complainant'
s recovery.
P
eople v. Wo od River Refining Co. ,
PCB 99-
1
20, slip op. at 4 (Aug. 8, 2002);
People v. C
ommunily Lanqfill Co. ,
PCB 97-193, slip op. at 3
(Aug. 6, 1998).
Al so, an affirmative defen se i
s defin ed as a "response to a plaintiff s claim
which attacks the plaintif
f s legal
ri ght to bring an action , as opposed to attacking the truth of
claim."
Farme
r's Slate Bank v
. Phillips P
etro
le
1lm C
o ,
PCB 97-100, slip op. at 2 n. 1 (Jan. 23 ,
1997) (quoting
Black '
s Law Diclionwy).
On the other hand , "if the pl eading does not admit the opposing party'
s claim, but instead
attacks the sufficiency
of that claim, it is not an affirmative defense."
Grand Pie
r v. Kerr-
McG
ee,
PCB 05-157, 2006 WL 1
59467, at
*
I (Jan. 5, 2006) . In other words, an affirmati ve
defen se
" must do more than mere l
y r
efute well-pleaded facts in the complaint."
Prywe
ller v
.
Cohe
n
,
668 N .
E. 2d 1144, 1149,282 Ill. App. 3d 899 (1
" Dis!. 1996),
appeal de
nied
675 N.E.
2d
640, 169 1l1.2d 588 (1 996).
Page 5
of 14
ARGUMENT
As
discussed below, Respondent'
s Affi rm ative Defenses II through IX must be stricken
b
ecause they either
fail to assert facts which would preclude Complainant's recovery, or because
they merel
y attempt to refute well-pleaded fact s in EMH's Compl aint.
A.
Bankruptcy. Respondent's Affirmative Defense Number II Contains No Facts to
Show EMH'S Present Cause of Action Was Affected by the Discharge.
Resp
ondent 's position rest
s on the implicit and irrefutably wrong assumption that all
entities that enter and
emerge fro m bankru ptcy are ab
sol
ved of all pre-bankruptcy sins.
E.g., In
re P
ellibone C
O/p. ,
90 B.R. 918, 923 (Ba nkr. N. D. 1II . 1988) (Where tort claimant is only
exposed t
o defecti ve product post-bankruptcy, co urt he
ld that claim arose post- bankruptcy and
was not
di schargeabl
e even where Chapter II debtor sold def
ective product to tort cl
aimant's
employer pre- bankruptcy).
The crux of Affi rmati ve Defense Number 1I is Respondent 's
allegation that EMH'
s claims are barred b
ecause EMI
-
I did not fil e a claim in Texaco's 1988
Chapter
II bankruptcy proceedi ng. It states: "No claims arising out or relating to any acts,
omissi
on
s or liabilities
of Texaco Inc. ari sing out of or r
elating to the Property, includi ng but not
limited
to the claims alleged in the Compl aint, wer
e filed in the Texaco Bankruptcy by
Comp l
ainants or any other p
erso n or
entity." (Afr. Def. No. II ,
~
6) (emphasis added).
But the affirmative defense a
lleges no f
acts t
o show that Co mplainant had a claim that
was required
to be filed in the Texaco bankruptcy proceeding or that was otherwise
di schargeabl
e in bankruptcy.
People v
. Highlands,
PCB 00-104, 2005 WL 298559 1
, at *3 (Oct.
20,2005) (U nder Illinois' fac t-pl eading standard and B
oard rules, an affi rmative defen
se must
"at a minimum s
et out ultimate facts that support" the defen se or it will be stricken.) (citing 35
Ill.
Adm. Code 103.
204(d».
Page 6 of 1
4
As Respondent asserted, Texaco fi l
ed its bankruptcy petition in 1
987, and March 15,
1988 was set as the date by whi
ch proofs
of claim had to b
e fil ed ("Bar Date"), (Aff. Def. No, II,
~~
2, 3,) Thus, the pivotal issue i
s whether EM I
-
I'
s pres
ent action coul
d qualify as such a cl
aim
(i,e" whether it had to b
e fi l
ed before the Bar Date),
The starting pl
ace
fo r any analysis of whether a claim is di
scharged is the definition of
"claim ,
" The Bankruptcy Code defines "cl
aim" broadly, and includes "any right to
payment, whether or not such
ri ght is reduced to judgment, liquidated, unliquidated,
fi xed, contingent, matured, unm atured, di sputed, undisputed, l
egal, equitable, secured or
unse[cured)."
Inl'e Conseco,
330 B,R, 673, 685-86 (Bankr, N ,
D, III , 2005) (emphasis added) (citing I I U,
S,
C,
§ 10
I
(5)(A)),
The
ri ght to payment must ex i
st before the Bar Date,
In I'
e Chicago, Milwaukee,
Sf,
Paul
& Pacific
R,R"
3 F,3d 200, 202, 207
(7'h
Cir. 1
993) (The claim bar only appli es to claims ari
sing
prior to the bankruptcy), While some cl
a
ims may qualify as a contin gent ri ght to payment and
subj ect to the bar, at some point the possibility b
ecomes so remote that no ri ght to payment
exists,
As one court aptly noted, a contingent
right to payment mi ght b
e said to ex ist somewhere
on a continuum between being and no
nbein g, At some point on that continuum, a right to
payment becomes so contingent th
at it cannot fairly be deemed a right to payment at all.
The con
stitutional ri ght to due process must guide courts in determining whether a
potenti al right constitutes a contingent claim that i
s
di scharged in bankruptcy,
Inl'
e Conseco,
33 0 B,R, 685 (internal quotati
ons and citations omitted),
Respondent's
af
firm ative defense must be stricken becaus
e it all eges absolutely no facts
that even r
emotely suggest
that EM f-! had a ri ght to payment on the
"Conseco
continuum ,
"
Therefore, even if all of the allegations i
n Af
firm ati
ve Defense Number II are assumed to b
e true,
EMf-! 's right to assert its present cause of acti on wou l
d not be defeated,
Highlands,
PCB 00- 104,
2005
WL 298559 1, at *3;
Communit
y Landfill Co"
PCB 97-1 93, slip op, at 3,
Page 7 of 1
4
The Seventh Circuit has addressed the i
ssue of what constitutes a "claim" in the
environmental context. In some cases the right to
payment turns on whether the cl aimant had
knowledge
of rel
eases pre-bankruptcy that will l
ead t
o claims.
In re Chicago, Milwaukee,
S
f
.
Paul
&
Pacific R
ailroad
,
974 F.2d 775, 786 (7 th Cir.1 992). Where no such knowledge i
s
p
ossessed,
the claims are not di scharged.
AM In, 'I, Inc. v
. Da/acard Corp.,
106 FJd 1342 (7th
Cir. 1
997);
see also In re Conseco , 330
B.R. at 685-86 (The test i
s "whether the claimant could
have f
airl
y contemplated a claim based on pre-
di scharge conditions or conduct. ") (emphasis
added).
In
Da/
acard,
cl
ean-up costs were recoverable where, as in the present case, the purchase
of the contaminated property occurred after the conclusion of the bankruptcy proceeding. AMI
caused sol
vent spills at its si
te from 1
959 to 1
98 1
, wh
en the site was sold to DBS.
Da/acard,
106 F.
3d 1
344. In 1982, AMI filed f
or Chapter II r
eorganization and its plan was confirmed in
1
984. Two years late
r, Datacard purchased the site from DBS :
Id.
at 1344. Because Datacard
did not know of the contamination unti l after the bankruptcy, Datacard had no right to p
ayment
pre-bankruptcy so its claim was not
di scharged.
I
d.
at 1
349.
Respondent has a
lleged no fact
s by wh i
ch one could possibly conclude EM H had any
right to payment, or even a contingent ri ght to payment, prior to the Bar Date. To surv i
ve thi s
Motion to
Strike, Respondent must allege, for exa mpl e, that EMH not only knew of the
contamination before the Bar Date (March 1
5, 1
988), but also knew at that time
the
contamina
tion would someday give EMH a right to payment. Of course, it i
s not possible for
Respo
ndent to validly assert such facts because EMH di
d not purchase the Property until so me
seventeen years l
ater, in 2005. [n short, EMH had no di
schargeabl e claim, and Respondent has
asse
rted no facts t
o the contrary. Affirmative Defen se Number II must be stricken.
Page 8
of 14
B.
Jurisdiction/Retroactive Application of Illinois Environmental Protection Act.
Respondent's Affirmative Defense
Number
III
Disregards the Board's Clear
Holdings that the Act Applies Retroactively.
Respondent asserts the lliinois Environmental Protection Act ("Act") is not applicab l
e
because:
( I) the Act became effective twel
ve years after Texaco began operati
on of the gas
station at the Property; and (2) Sections 2 1
(a) and 2 1
(e)
of the Act (4 1
5 1
LCS
5/2
I
(a) and 2 1
(e))
were not
" in effect earlier than January I, 1
985." (Afr. Def. No. Ill ,
~
2, 3.
) Respondent is
simply
incorrect. [n fact, Sections 2 1
(a) and
(e)
were part of the ori ginal 1970 Act (P.A. 76-
2429,
efr. Ju l
y
I,
1
970).
t
Further, Respondent admitted that Texaco operated the gas station for
seven years beyond 1
970. (Answer to Compl.
~
6, operating from 1958-77). Respondent has
a
ll eged no facts that wou ld preclude application of the Act to Texaco and thi s deficiency is fatal.
Highland
s,
PCB 00-104,2005 WL 298559 1
, at *3;
Wood River Refinin
g Co.,
PCB 99- 1
20, slip
op. at 4.
EMH a
lleged that Texaco caused or all owed rel
eases in vi
olation of the Act and such
contamination remained on the Propert
y. Compl.
~' 133 -34 ,
40-4 1. Whether the contami n
ation
occurred before
1970, after 1970, or partly before and after 1
970 is of no consequence. The
Board has repeatedly and unequivocally held that the Act appli es retroacti
vely.
Grand Pier v
.
Kerr-McGee ,
PCB 05- 15 7, 2005 WL 1255254, at *4 (May 19,2005) (citing
Slale Oil Co. v
.
People,
822 N.E.2d 876, 882, 352
III.
App. 3d 813, 819 (2
nd
Dis!. 2004).
In
G
rand Pier,
the respondent argued the complainant had no cause of action because the
contamination occurred decades before the Act was adopted.
Grand Pier,
PCB 05-157, 2005
WL 1255254, at *2.
[n response, the compl
ainant argued that the wrongful acts occurred before
1970, but they caused compl
ainant to incur clean-up costs in 2000 and beyond. rd. at *3 . The
I Since 1970, various amendments were made t
o Secti on
21.
4 1
5 ILCS
5
/2 1.
However, these amendment s do not
affect the validit
y of EM I
-
I 's claims.
Page 9 of 1
4
Board agreed with the compl ainant and , re l
ying on
Slale Oil,
stated "that the l
egislature intended
the Act to "address ongoing problems, whic h by definition exi
sted at th
e time the Act was
enacted."
Id
~
at *
4. To find oth
erwise wou l
d strip th
e Act of its authority over p
ersi
st
ent
contamin
ati
on due to actions prior to 1
970. Id. at *3.
Under a pl
ain reading of the Act and the h
ol
ding of
G
rand Pie
r,
Respondent's
Affi
rmative Defense Number III i
s l
egall y insuffici ent and sh
ould be stricken.
C.
Jurisdiction/Authority to Award Cleanup Costs. Respondent'
s Affirmative Defense
Number
IV
Disregar'ds the Board's Clear Holdings that
It
Possesses the Authority
to Awa rd Cost Recovery to Private Parties.
Resp
ondent asserts that the Boa
rd l
acks st
atutory authority to award clean-up costs. (Aff.
D
ef. No. IV,
~~
4-6.
) Even a casu
al l
ook at the Board '
s cases sh
ow that Respondent is wron
g.
"Since 1
994, the Board has consistently held that pursu
ant to the broad l
anguage of Secti
on 33 of
the Act (4 1
5 ILCS 5
/33 (2002)), the Board has the authority to award cleanup cost
s to private
parties for a vi
ol
ation
of the Act."
See e.g. , Grand Pier,
PCB 05-157,2005 WL 1
255254, at *4
(citing
Lake County Fares/ Preserve Dis/riel v. Os/ro,
PCB 92-80 (Mar. 31
, 1994)). In
Os/ro,
the Board stated that Section 33(a) of th
e Act sp
eci fi cally allows the Board " t
o ent
er such fin al
orders as it deems
appropriate."
Os/ro,
PCB 92-80, slip op. at 1
3. Respondent has prov ided no
factual or legal
basis to conclude that the Boar
d's clear rulings sh
ould not obtain in the present
c
ase. Respondent
's Affirmati ve Defen se Number IV must be stricken.
D.
No Cognizable Legal Principle. Respondent's A
ffirmative Defense Numbers V, VI,
and VII, Present No Cognizable Legal Principle that Would J>reclude Recovery by
EMH.
Respondent'
s Affirmative Defen
se Numbers V, VI and VII are essentially the same.
Each asserts
that because EM I
-
I did n
ot all ege that it performed due diligence prior to purchasing
the Property, EMH " incurred the ri sk," "assumecllhe ri sk," and "could have avoi ded the
Page 10 of 14
con
sequen
ce
" of the rel
eases of contaminants on th
e Prop
erty. (AfC Def. Nos. V,
~~
4-8; VI ,
~~
4-8; and VII,
' I~
4 - 8.)
R
esp
o
ndent h
as articul ated n
o l
egal theory by whi ch a third pa
rty's investi gati on (
or l
ack
of inves
tigation) prior to entering into a contract for the purchase of property could possibly
re
liev
e R
espondent of responsibility for vi
olations of S
ections 21 (a) or 21(e) s
ome thirty y
ears
ea
rlier. R
espondent 's asserti
on
s do n
ot compri se af
firm ati ve defenses b
ecause they do n
ot a
ssert
n
ew facts or arguments that, i
f true, co uld defeat EMH 's cl
aims.
W
ood River R
efining Co .,
PCB
99-120,
slip op. at 4 (An affirm ati ve def
en
se admits the all egations in th
e complaint and asserts a
n
ew mat
ter whi ch precludes complainant's r
ecover
y.)
Communit
y Lan
d.
fill Co. ,
PCB 97-1 93,
slip op. at
3. Whether EMH conducte
d ex h
au
stive due dili gence or no due dili gen
ce i
s utterly
irrelev
ant t
o the validity or strength of
its cl aim, and Respondent's Affirmati ve Def
enses V, VI ,
and VII do not say h
ow
the cont
Tary could p
ossi
bl
y b
e true. Those af
firm ative defen
ses ar
e
prepost
erous and sh
ould be str
ick
en.
E.
Mere Attempted Refutation of Allegations. Respondent's Affirmative Defense
Number VIII is Termed " Causation" But Off
ers No Facts Refuting EMH's
Allegations.
An affirm ative defense
" must do more than merely refute we ll-pleaded fact
s in the
complaint."
Plywell
er,
668 N.E.
2d at 1149. In Affi rmati
ve Defense N umber VIII, Resp
ondent
asserts,
"Complainants cannot demon
strate that the r
el
ease of gasoline or other p
etroleum alleged
[
si
c] occurre
d during the time
that Texaco Inc. oper
at
ed any USTs on th
e Property; thus, Texaco
lnc
.'
s oper
ation of the USTs could n
ot have directly r
esulted in the releases alleged." (Aff. Def.
No. VIII,
~
7.) Aside from Respondent's l
eap oflogi
c, its affirmati ve de f
en
se fails because it
off
ers no f
acts whatsoev
er to support its p
osition. Respondent also n
ak
edly muses that others
could b
e
the cause of any rel
ease of gas
oline on the Pr
operty. (Af
f
. Def. No. VIIl,
~
6, emphasi
s
Page II of 1
4
a
dded.) R
espondent ci
tes no f
acts t
o support thi s mere sp
eculation. Further, even i
f that were
true, R
esp
ondent suggests no principl
e of l
aw as t
o h
ow that f
act would reli eve it of
r
esponsi
bility f
or vi
ol
ations of Sec
tion
s 2 1
(a) and 2 1
(e).
Wood River,
PCB 99- 120, slip o
p. at 4
(A valid
af
firm ati ve defen se admi ts the allegati on
s in the complaint and asserts a new matter
which pr
ecludes compl
ainant
's r
ecovery). Thus, R
espondent 's Affirmative Def
en
se Number
VIII i
s insuffici
ent and sh
ould be st
ri cken.
F.
Laches. Respondent's Affirmative Def
ense Number
IX
Sets Forth No Facts to
S
upport a Defense of L ach es.
"Lach
es is an equitable doctrine that bars r
elief wh
ere a defendant h
as b
een mi sl
ed or
pre
judiced because of a plainti ffs del
ay in asserting a right."
People
v
.
Skoki
e Valley Asphalt
Co.,
PCB 96-98, 2004 WL 2008898, at *7 (Sept. 2, 2004) (emphasis added) (citing
Cit
y of
Roch
elle
v
.
Su
ski,
206 III. App. 3d 497, 5
01 , 564 N.E.2d 933, 936 (2
nd
Dist. 1
990). Un
der thi s
we
ll establi
shed equ i
t
able princip l
e, the inquiry l
ook
s t
o action
s by the compl
ainant.
Responden
t's Af
firm ative Defense N umber I
X, purporting t
o b
e premised on l
aches, contains n
o
fact
s r
elating t
o any del
ay by Complainant EMH. Ra
ther, i
t merely refers to f
acts r
el
ating to the
age and/or exi
st
en
ce of wi
tnesses a
nd other evi
den
ce. Assuming
arguendo
those f
act
s are true,
they a
re simply not r
elevant (ev
en
if it i
s assume
d that l
aches coul
d otherwi
se defeat EMH's
cause of action, which EMH does not a
dmi t). Accord in
gl
y, this af
firmative def
ense is
insuffic i
ent and sh
ould be stri cken.
Page 1
2
of 1
4
CONCLUSION
Affirmati
ve Defense Number [ is denied. The Board shoul
d strike Affirmative Defen ses
[[ through and including I
X because they ar
e l
egall y and/or factuall y deficient for the reason
s
sl
ated above.
Dated: June
S, 2
009
Carey S. Rosemarin (ARDC No . 6 181 9 11 )
Andrew
1. Marks (ARDC No. 6286796)
Law Offices
of Car
ey S. Rosemarin, P.C.
SOO
Skoki
e Boulevard, Suite
SI
0
Northbrook, [L 60062
847-897-8000
3 1
2-896-S786
(fax)
csr@rosemarinlaw.com
ajm@
rosemarinlaw.com
Respectfull y submitted,
Elmhurst Memori
al Healthcare
ital
B y:
-i-
1!J 1
!ill~~1C...
_
One of tVeir atto rneys
Page 1
3
of 1
4
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ELMHURST MEMORIAL HEAL THCARE and
)
ELM
HURST MEMORIAL I
-
IOSPIT AL
)
)
Com
plainants,
)
)
v.
)
PCB 09-66
)
(C i
tize n's En
fo rcement - L
and)
CHEVRON
U.S.A. INC. ,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
I, the undersigned, on June 5, 2009, caused th
e forego ing "Complainants' Response to
Affirma
tive Defen
se Number J and Motion to Stri ke Affi11l1ative Def
enses II Through I
X" and
Notice of Filing to be electronicall y fi l
ed wi
th the Office of the Cl
erk, and caused a true and
correct copy of said documents to be served u
pon:
Joseph
A.
Girar
di
Robert B. Christie
Henderson
&
Lyman
Atto
rneys for Chevron U.S.
A. In c.
1
75 W. Jackson Blvd., Suite 240
Chi cago, Illinoi
s 60604
jgirardi
@hender
son-lyman.com
rc
hristie@hender
son-lyman.com
by placing same in an envelop
e beari
ng suffici
ent postage with the Uni ted States Postal Ser
vi
ce
'
00,"'" 2460 No rth D
""'
" RM'
,
Nm",b
,
ook,
1l]; ~6 '
62'''
('
Car
ey S. Rosemarin (ARDC No. 6 1
8 1
9 11 )
Andrew 1. Marks (ARDC No. 6286796)
Law Offi ces of Car
ey S. Rosemari n, P.C.
500 Skoki
e Boulevard, Suite 5 1
0
Northbrook, Illinois 60062
(847) 897-8000
csr@rosemarinlaw.com
aj m@rosem
arinlaw.com
One of the t orneys or
Elmhurst Memo
rial I
-
I
eal
thcare
Elm
hurst Memorial Hospital
Page 1
4 of 1
4
