MOTION TO DISMISS AFFIRMATIVE DEFENSES
INTRODUCTION
General Affirmative Defense No. 1 - Failure to State a Claim
General Affirmative Defense No. 2 - Failure to Follow Proper Testing Procedures
CONCLUSION

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

PEOPLE

OF THE STATE OF ILLINOIS,)

Complainant,

-vs-

)No.

05-181

PATTISON ASSOCIATES LLC, an

)

(Enforcement

Air)

Illinois limited liability company,

and 5701 SOUTH CALUMET LLC, an

Illinois

limited liability company,)

Respondents.)

To:

See Attached Service List.

(VIA ELECTRONIC FILING)

NOTICE OF 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 following Motion to Dismiss 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

State of Illinois

BY:

d t

oz~

PAULA BEokER WHEELER

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20"'

F~r.

Chicago, IL 60601

(312) 814-1511

Date:

November 16, 2005

THIS DOCUMENT IS PRINTED

ON RECYCLED PAPER

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005

CERTIFICATE OF SERVICE

PAULA BECKER WHEELER, an Assistant Attorney General in the case of Peonle v. Pattison

Associates et al..

PCB 05-18 1, do certify that I caused to be served this

1611

day of November, 2005, the

foregoing Motion to Dismiss Affirmative Defenses upon the persons listed on said Notice by depositing

same in an envelope, by first class postage prepaid, with the United States Postal Service at 188 West

Randolph Street, Chicago, Illinois, at or before the hour of 5:00 p m.

PAmULA BECKER WHEELER

November 16, 2005

SERVICE LIST

Mr. Neal Weinfield/Ms. Allyson L. Wilcox

Mr. Bradley P. Halloran

Bell Boyd & Lloyd

Hearing Officer

70 West Madison

Illinois Pollution

Control Board

Suite .3 100

100 W.

Randolph Swreet

Chicago, IL 60602

Suite 11-500

Chicago, IL 60601

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

PEOPLE

OF THE STATE OF ILLINOIS)

Complainant,)

vs-

)

PCB No. 05-181

)

(Enforcement

Air)

PATTISON ASSOCIATES

LLC, an)

Illinois limited liability

company,)

and 5701 SOUTH CALUMET

LLC, an)

Illinois limited liability company,)

Respondents.)

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,

35 111. Adm. Code 101.506, and Section 2-615

of the Illinois

Code of Civil Procedure, 735 ]ILLCS 2-6

(2004), for an order dismissing,

with

prejudice, Respondents', PATTISON ASSOCIATES LLC

and 5701 SOUTH CALUMET LLC,

affirmative

defenses to the Complaint.

INTRODUCTION

On April

4, 2005,

Complainant, People of the State of Illinois ("People"),

filed

a five-count

air pollution complaint against

Respondents, Pattison Associates LLC, and 5701 South Calumet

LLC, ("Respondents")

before the Illinois Pollution Control Board, ("Board"). The complaint

alleges that the Respondents committed numerous violations

of the Illinois Environmental

Protection Act ("Act"),

415

ILCS

5/1 et seq.

(2002), and regulations thereunder.

Count I is titled

Air Pollution,

Count H

Failure

to Thoroughly Inspect Prior to

Renovation, Count HII Failure to Submit

Notifiation,

Count IV

Failure to Follow Proper

Emission

Control Procedures,

and Count V

Failure to Follow Proper Disposal Procedures.

October 14, 2005, Respondents

filed their Answer and Affirmative Defenses. Complainant was

served with

the Answer and Affirmnative Defenses on October 17, 2005.

STANDARD

Pursuant to 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 new matter by which the apparent right is defeated.

Ferris Elevator Company, Inc. v.

Neffco, Inc.,

285 Ill. App. 3d 350, 354, 674 N.E.2d 449,

452

(3rd Dist. 1996);

Condon v.

American Telephone and Telegraph Company, Inc.,

21 0 III. App. 3d 701, 709,

569

N.E.2d 518,

523

(

Dist. 1991).

Worner Agency, Inc. v. Doyle, 121

Ill. App. 3d 219, 222, 459 N.E.2d 633,

635-636 (4th Dist. 1984). In other words, an affirmative

defense confesses or admits the cause of

action alleged by the complainant, then seeks to avoid it 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

111. App. 3d. 559, 569-570, 299 N.E.2d 521, 527 (I1st Dist.

1973).

Thus, the issue raised by an affirmative defense must be one outside of the four corners of

the complaint. Further, the facts constituting any affirmative defense must be plainly set forth in

the answer. Section 2-613(d) of the Illinois Code of Civil Procedure, 735 ILCS 5/2-613(d)

(2004). Finally, the facts establishing an affirmnative defense must be pled with the same degree

of specificity required by a complainant to establish

a cause of action.

International Insurance

Co. v. Sargent & Lundy, 242

Ill. App. 3d 614, 609 N.E.2d 842, 853 (1 st Dist. 1993).

ARGUMENT

General Affirmative Defense No. 1

Failure to State a Claim

Respondents raise a first affirmative defense of 'failure to state a claim on which relief

can be granted'. The

Respondents make no further allegations

supporting this affirmative

defense.

It is the also the same pleading

that they made earlier in their Motion

to Dismiss the

Complaint, previously

denied by the Board.

In the document at hand, it

is not a proper

affirmative defense. It

fails to assume the facts in the Complaint

to be true, it fails to allege

any

matter that would negate

the facts of the Complaint, and

it fails to raise any facts outside

the four

corners of the Complaint. Furthermore,

it is not pled with

any specificity; in fact, it is a bald

statement with no facts alleged

at all. Respondents' affirmative

defense number one should

stricken, and dismissed

with prejudice, as a matter of law.

General

Affirmative Defense No. 2

Failure to Follow Proper Testing

Procedures

Respondents raise as

a second affirmative defense

that the People failed to follow

proper

testing procedures

and/or utilized an inappropriate

testing method. This allegation

is not a

proper affirmative defense.

It is basically disputing the

facts as alleged in the Complaint.

Even

if any evidence

of such an allegation could

be presented, it would only go

to the weigh~t of the

evidence, and, as such, is a matter

for the trier of fact. It is not

arising outside the four corners

the

Complaint, and is not properly

before the Board as an affirmative

defense. This second

purported affirmative defense

should also be stricken,

and dismissed with prejudice, as

a matter

of law.

CONCLUSION

For the

foregoing reasons, the Complainant respectfully

requests that Respondents',

PATTISON

ASSOCIATES LLC and 5701 SOUTH CALUMET

LLC, affirmative defenses be

dismissed,

with prejudice.

Respectfully

submitted,

PEOPLE OF THE STATE OF ILLINOIS,

LISA MADIGAN,

Attorney General

State of Illinois

BY:

dy-

Pjula

Becker Wheeler

Assistant

Attorney General

Environmental Bureau

188 W.

Randolph St.

20th El.

Chicago, IL 60601

(312) 814-1511