BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK’S OFFICE
Complainant,
)
DEC 2 82004
)
PCB
05-66
Pollui~onSTATE OFControlILUNOISBoard
PETCO PETROLEUM CORPORATION,
)
an Indiana Corporation,
)
)
Respondent.
)
MOTION TO DISMISS COMPLAINT
NOW COMES Respondent, PETCO PETROLEUM CORPORATION, (“Petco”), by and
through its attorneys, Sorling, Northrup, Hanna, Cullen and Cochran, Ltd., Charles J. Northrup and
James G. Fahey, ofcounsel, and pursuant to
35
Ill.Adm. Code Sections 101.500 and 101.506, hereby
moves to dismiss the Complaint filedin this matter for the reasons set forthhelaw. In support, Petco
states:
I. PROCEDURAL BACKGROUND
1.
On or about October 13, 2004, the People of the State of Illinois (“Complainant”),
filed this six count complaint against Petco. The first two Counts relate to a May 24, 2004, release
of approximately 50 barrels of salt water from a pipeline associated with Petco’s oil production
operation in Fayette County, Illinois (See Compl., Count I,par. 14). Count I alleges “waterpollution
violations” and Count II alleges “water quality violations.” The second two Counts relate to an
August 21, 2004, release ofapproximately 200 barrels of salt water from another Petco pipeline in
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Fayette County. Tracking the form of the first two Counts, Count III alleges “water pollution
violations” and Count IV alleges “water quality violations.” The final two counts relate to an
October 4, 2004, release of approximately 300 barrels of saltwater from another Fayette County
Petco facility. Count V alleges “water pollution violations” and count VI alleges “water quality
violations.”
2.
Since October 13, 2004, the Complainant was unable to serve Petco with the
Complaint. On or about November 29, 2004, counsel for Petco agreed to accept service on behalf
of Petco. For purposes oftime computations, November 29, 2004, was identified as the date of
service of the Complaint.
II.
ARGUMENT
A.
Section 12(d) of the Act
-
Water Pollution Hazard
3.
Counts I, III and V all contain an allegation that provides: “By depositing
contaminants upon the land in such a place and manner as to create a water pollution hazard, Petco
has violated Section 12(d) ofthe Act, 415 ILCS
5/12(d)
(2002).” (See Compi., Counts I, III and V,
par. 17). Counts I, III and V also all contain an allegation that provides: “By causing or allowing the
discharge ofsalt water into “waters” ofthe State, the Respondent has caused water pollution in the
State of Illinois, and thereby violated Section 12(a) of the Act, 415 ILCS 5/12(a) (2002).” (See
Compl., Count I, par. 20, Count III, par. 21 and Count V, par. 21.) The inclusion ofmore than one
cause ofaction (in this case allegations ofstatutory violation) within a single count is improper, and
as such theComplaint must be dismissed. 735 ILCS
5/2-603(a);
735 ILCS
5/2-613(a).
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4.
While not expressly applicable to Board proceedings, provisions ofthe Code ofCivil
Procedure may be used as guidance by the Board.
35
I1l.Adm. Code 101.100(b). Relevant to this
case are Code ofCivil Procedure sections 2-603(b) and 2-613(a). Section 2-603 provides that “each
separate cause of action upon which a separate recovery might be had shall be stated in a separate
count...” 735 ILCS
5/2-603(a).
Similarly, Code section 2-613 provides that “Parties may plead as
many causes ofaction.. .as they may have, and each shall be separately designated and numbered...”
735 ILCS 5/2-613(a).
5.
In Complainant’s Complaint, allegations of water pollution hazard and water
pollution are separate and distinct violations under the Act. Accordingly, they should, as required
by the Code of Civil Procedure, be separately numbered and designated. Such specificity is
appropriate for clarity, organization and the marshaling oflegal and factual arguments that will be
used a guide throughout the remainder of the trial. Perhaps more importantly, the combination of
multiple allegations and facts in a single count requires a respondent to guess what facts might be
applicable to the different allegations and may allow a complainant to be intentionally vague. The
result is that such “blended” allegations and facts impedesthe ability of a respondent to prepare an
adequate defense. Such a complaint is specifically prohibited by Board rules. (See 35 Ill .Adm Code
103 .204(c)(2)(”The complaint must advise respondents of the extent and nature of the alleged
violations to reasonably allow preparation of a defense...”)
6.
In addition to this pleading defect, any cause ofaction alleging violations ofa “water
pollution hazard” should be dismissed as insufficient in law. (See 735 ILCS
5/2-615(a).
According
to the Complaint, the threereleases at issue all resultedin an impact to waters ofthe State and “water
pollution.” Because an allegation of “water pollution hazard” reflects an activity that has not yet
ripened into “water pollution,” when such an activity has allegedly ripened into “water pollution”
any “water pollution hazard” allegation becomes moot. Accordingly, dual allegations of “water
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pollution” and “water pollution hazard,” as plead in this Complaint, cannot co-exist and the
Complaint must be dismissed.
7.
As noted, the Complainant has alleged that the three releases at issue have resulted
in both “water pollution” and “water pollution hazards.” The prohibition against “water pollution
hazards” is:
No person shall deposit any contaminant upon the land in such a
place and manner so as to create a water pollution hazard. 415 ILCS
5/12(d) (2002).
While the Act does not define what a “water pollution hazard” is, several courts have addressed the
issue. A water pollution hazard must at a minimum satisfy the elements of“water pollution,” but
also that it means activity that has
not yet
ripened into such a violation. Tn-County Landfill Co. v.
Illinois Pollution Control Board, 41 Il1.App.3d 249, 353 N.E.2d 316, 324 (2ndDist. 1 976)(”If 12(d)
referring to water pollution hazard is not to be rendered superfluous, it must be construed to refer
to conduct not yet amounting to a violation of 12(a)”). Under this case law, and a plain reading of
the Act, a “water pollution hazard” violation is a violation that does not become a “waterpollution”
violation. In this case, it is alleged that the water pollution hazards did turn into water pollution.
Accordingly, and as plead, allegations of a “water pollution hazard” cannot stand.
8.
The Complainant is essentially attempting to impose two violations foroneact. The
one act at issue being the alleged release of salt water into waters ofthe State. Not only does it defy
common sense that a potential violator could be sanctioned for the final act as well as the
intermediate steps leading up to it, but such dual violations have been recognized as improper in
other areas of law. In People v. King, the Illinois Supreme Court held that it is (1) improperto carve
more than one offense from the same act and (2) that when there are multiple acts, it is improper to
convict a defendant ofboth an offense and a lesser included offense. Peot,le v. Priest, 297 Ill.App.3d
797, 232 Ill. Dec. 385, 388, 698 N.E.2d 223, 226 (4th Dist. 1998) citing People v. King, 66 Ill.2d
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551,
566, 6 Il1.Dec. 891 (1977). The “lesser included offense” aspect ofthe King case has been
applied in civil administrative actions. See Kinter v. Board ofFire and Police Commissioners, 194
Il1.App.3d 126, 141 Ill.Dec. 80, 550 N.E.2d 1126, 1128(1st Dist. 1990). Under the first prong of
what has become known as the “King Doctrine,” there is no dispute that the three alleged acts of
“water pollution hazard” are the same specific acts alleged as “water pollution.” They are plead in
the same counts with the same facts. With respect to the second prong ofthe “King Doctrine,” even
if there were multiple acts, those acts constitute a “lesser included offense.” A lesser offense is
defined as an “offense that does not have any element not included in the greater offense.” Priest,
297 Ill.App.3d at 804,232 I1l.Dec. at 389, 698 N.E.2d at 227, citing People v. Jones, 149 Ill.2d 288,
292-93, 172 Ill.Dec. 401 (1992). This definition is clearly satisfied by the allegations in this case,
especially in that the two “offenses” are plead in the same counts. Accordingly, the Complaint as
currently drafted cannot stand.
B.
Section
12(a) ofthe Act
-
Water Pollution
9.
The Complaint also alleges violations of Section 12(a) ofthe Act related to “water
pollution”. These allegations, asreferenced above, are included along with “waterpollution hazard”
allegations in Counts I, III and V, but are also alleged in Counts II, IV and VI. Counts II, IV and VI
are styled as “Water Quality Violations” and relate to the same three incidents referenced in Counts
I, III and V. As alleged by the Complainant, these “Water Quality Violations” constitute violations
of Section 12(a) of the Act. The basis of these “Water Quality Violations” are two distinct
regulatory provisions. The first referenced regulatory provision(s) relates to a prohibition against
causing “offensive conditions.” To support these allegations, the Complainant refers to a number
ofcharacteristics including bottom deposits, visible oil, discoloration and turbidity. (See Compl.,
Count II, par. 21, Count IV, par. 20, Count VI, par. 20). The second referenced regulatory provision
relates to the exceedances of the general use water quality standard for chlorides. (See Compi.,
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Count II, par.22, Count IV, par. 21, Count VI, par. 21). These allegations are poorly plead and fail
to meet the Board’s complaint requirements as set out in 35 Ill.Adm. Code 101.103(c). For the
specific reasons set forth below, the Complaint in this matter must be dismissed.
10.
Counts II, IV and VI appear simply to be duplicative of Counts I, III and V to the
extent that they all allege violations of Section 12(a) ofthe Act. The allegations contained in Counts
II, IV and VI merely appearto be the same allegations pleadwith greater regulatory specificity. This
blending ofallegations with respect to violations, followed by what appears to be nothing more than
a recast, albeit more specific, ofthe same alleged violations fails to provide Petco with a reasonable
opportunity to defend itself as required by Board regulations. 35 Il1.Adm. Code 103.204(c)(2).
11.
Section 103.204(c) ofthe Board’sprocedural rules require a number ofspecific facts
to be alleged in a complaint. In part, Section 103 .204(c) requires:
The dates, location, events, nature, extent, duration, and strength of
discharges or emissions and consequences alleged to constitute
violations of the Act and regulations. 35 Ill.Adm. Code 103.204(c).
The Complaint drafted in this case, however, lacks anumber ofthese facts. Nothing is included with
respect to extent, duration or strength of the alleged releases. Petco is entitled, by the express
language of Rule 103.204, to know at this early stage the full allegations against it, including the
extent, duration and strength of the alleged releases, which Petco asserts would have been minor.
Without such accurate, specific and required pleading, a respondent may not be fully appraised of
a Complainant’s allegations or the best manner in which to mount a defense. In addition, such a
briefpleading may provide the Board and the public with an improper and inaccurate perception of
the alleged violator. Perhaps more fatal to Complainant’s Complaint is that it contains no facts
related to the “consequences” ofthe alleged violations. The “consequences” ofthe alleged violations
in this case are important because they frame a portion ofthe burden that the Complainant must bear
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with respect to allegations of water pollution as well as penalty issues under Section 42 ofthe Act.
The absence ofany such factors requires the Board to dismiss this Complaint.
WHEREFORE, Respondent Petco Petroleum Corp., respectfully requests that forthe reasons
• stated above the Board dismiss the Complaint filed in this matter, or for any such other relief the
Board deems proper.
Respectfully submitted
PETCO PETROLEUM CORPORATION, Respondent
By
~~orneys
Sorling, Northrup, Hanna,
____
Cullen & Cochran, Ltd.
Charles J. Northrup, and
James G. Fahey ofCounsel
Suite 800 Illinois Building
P.O. Box 5131
Springfield, IL 62705
Telephone: 217.544.1144
Fax: 217.522.3173
E-Mail: cjnorthrup~sorlinglaw.com
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PROOF OF SERVICE
The undersigned hereby certifies that an original and ten (10) copies of the foregoing
document were served by Federal Express to:
Ms. Dorothy Gunn, Clerk
Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago,IL 60601
and one copy to:
Ms. Carol Webb
Hearing Office
Illinois Pollution Control Board
1021 North Grand Ave. East
Post Office Box 19276
Springfield, IL 62794-9274
Mr. Tom Davis
Illinois Attorney General’s Office
Environmental Division
500 South Second Street
Springfield, IL 62706
and by depositing same in the United States
December, 2004, with postage fully prepaid.
mail in Springfield, Illinois, on the -2~t day of
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