ILLINOIS POLLUTION CONTROL BOARD
April 18, 2002
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
STEIN STEEL MILLS SERVICES, INC., an
Illinois corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 02-1
(Enforcement - Air)
ORDER OF THE BOARD (by N.J. Melas):
On January 7, 2002, the People of the State of Illinois (complainant) filed a motion to
strike respondent’s affirmative defenses (Mot. Str.). On January 18, 2002 respondent Stein
Steel Mills Services, Inc. (Stein) filed a response to the motion to strike (Resp.).
For the reasons outlined below, the Board grants the motion to strike in part and denies
it in part. The Board grants the motion to strike Stein’s first, second, fourth, and sixth
affirmative defenses. The Board denies the motion with respect to the third, fifth, and seventh
affirmative defenses.
PROCEDURAL HISTORY
On July 2, 2001, complainant filed a two-count complaint against Stein. On July 30,
2001, Stein filed a motion to dismiss that the Board denied on November 15, 2001.
Complainant filed its first amended complaint (Am. Comp.) on September 4, 2001. Stein filed
its answer and seven affirmative defenses on December 4, 2001 (Ans.).
BACKGROUND INFORMATION
Stein’s facility at issue herein is located at 5250 Millet Road, Granite City, Madison
County. Stein’s facility is primarily engaged in the crushing and screening of slag from
National Steel Corp. Am. Comp. at 1-2.
Count I
Complainant alleged that Stein generally emitted dust, kish, metallic particles, and other
fugitive particulate matter from its facility. The alleged violations occurred at various times
from 1997 to 2000 and on other dates. Complainant alleged that the emissions resulted in the
deposition of particulate matter in nearby residential properties that unreasonably interfered
2
with the use and enjoyment of real and personal property. Complainant alleged that, as a
result, Stein caused air pollution in violation of Section 9(a) of the Environmental Protection
Act (Act) (415 ILCS 5/9(a) (2000)) and Section 201.141 of the Board’s regulations (35 Ill.
Adm. Code 201.141). Am. comp. at 2-3.
Count II
Stein has a federally enforceable state operating permit (FESOP) allowing it to operate
its facility. Complainant alleged that Stein ran its facility with an inadequate operating
program
to control fugitive particulate matter in violation of Section 9(b) of the Act (415 ILCS
5/9(b) (2000)) and Section 212.309(a) of the Board’s regulations (35 Ill. Adm. Code
212.309(a)).
1 In addition, complainant alleged that Stein failed to maintain written records of
control measures in violation of Special Condition 8(b) of Stein’s FESOP, Section 9(b) of the
Act, and Section 212.316(g)(4) of the Board’s regulations (35 Ill. Adm. Code 212.316(g)(4)).
Complainant cited two separate 1997 Illinois Environmental Protection Agency (Agency)
inspections in which Stein did not have the proper records. Am. comp. at 4-7.
AFFIRMATIVE DEFENSES
Standard
The Board’s procedural rules specify that “[a]ny 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 hearing.” 35 Ill. Adm. Code
103.204(d). In an affirmative defense, the respondent alleges “new facts or arguments that, if
true, will defeat . . . the government’s claim even if all allegations in the complaint are true.”
People v. Community Landfill Co., PCB 97-193, slip op. at 3 (Aug. 6, 1998) (citation
omitted).
The Code of Civil Procedure gives additional guidance on pleading affirmative
defenses. Section 2-613(d) provides, in part:
The facts constituting any affirmative defense . . . and any defense which by
other affirmative matter seeks to avoid the legal effect of or defeat the cause of
action set forth in the complaint, . . . in whole or in part, and any ground or
defense, whether affirmative or not, which, if not expressly stated in the
pleading, would be likely to take the opposite party by surprise, must be plainly
set forth in the answer or reply.” 735 ILCS 5/2-613(d) (2000).
1 The amended complaint states that Stein allegedly violated Section 9(a) of the Act. However,
the nature of the alleged violation, the fact that a similar paragraph in the original complaint
alleged a violation of Section 9(b), and the fact that the language of Section 9(b) is quoted
immediately after the allegation in the amended complaint leads the Board to believe that
complainant meant to allege a violation of Section 9(b).
3
A valid affirmative defense gives color to the opposing party’s claim but then asserts
new matter which defeats an apparent right. Condon v. American Telephone and Telegraph
Co., 210 Ill. App. 3d 701, 709, 569 N.E.2d 518, 523 (2nd Dist. 1991), citing The Worner
Agency Inc. v. Doyle, 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635 (4th Dist. 1984).
A motion to strike an affirmative defense admits well-pleaded facts constituting the
defense, and attacks only the legal sufficiency of the facts. “Where the well-pleaded facts of
an affirmative defense raise the possibility that the party asserting them will prevail, the
defense should not be stricken.” International Insurance Co. v. Sargent and Lundy, 242 Ill.
App. 3d 614, 630-31, 609 N.E.2d 842, 853-54 (1st Dist. 1993), citing Raprager v. Allstate
Insurance Co., 183 Ill. App. 3d 847, 854, 539 N.E.2d 787, 791 (2nd Dist. 1989).
Complainants contended that none of Stein’s affirmative defenses are properly classified
as affirmative defenses. Mot. Str. at 1.
First Affirmative Defense
In its first affirmative defense, Stein claimed that complainant has failed to state a cause
of action against Stein. Ans. at 8.
Complainant contended that the first affirmative defense is just a restatement of the
denial in Stein’s answer. Complainant stated that Stein raises no new matters as a defense to
the allegations. Mot. Str. at 2. Stein responded that failure to state a cause of action is a
common affirmative defense and that it advances the argument beyond a denial of the
allegation. Resp. at 3.
Discussion
Stein’s first affirmative defense does not give color to complainant’s allegations nor
does it assert any new matters to defeat complainant’s claims. In addition, the Board recently
struck an affirmative defense in which a respondent claimed that complainant failed to state a
cause of action.
See
People v. Royster-Clark, Inc., PCB 02-08, slip op. at 6 (Jan. 24, 2002).
The Board accordingly strikes Stein’s first affirmative defense.
Second Affirmative Defense
In its second affirmative defense, Stein claimed that the alleged violations are not
willful, knowing or repeated violations. As a result, Stein claimed, there was no statutory
basis for the complaint, and complainant is not entitled to request attorney fees. Ans. at 8.
4
Arguments
Complainant contended that the second affirmative defense “is nothing more than a
general denial of the alleged violations.” Mot. Str. at 2. As it did for its first affirmative
defense, Stein responded that failure to state a cause of action is a common affirmative defense
and that it advances the argument beyond a denial of the allegation. Resp. at 3.
Discussion
Stein’s second affirmative defense is actually two affirmative defenses: (a) Stein did not
willfully, knowingly, or repeatedly violate the statutory and regulatory provisions at issue, and
(b) complainant is not entitled to request attorney fees. The Board addresses each one
separately.
The Board finds that willfulness, knowledge, and repetition are not elements of those
Sections of the Act, the Board’s regulations, and Stein’s FESOP that Stein allegedly violated.
There is no possibility that Stein will prevail on this defense and, accordingly, the Board
strikes the first part of the second affirmative defense.
Imposing attorneys’ fees for a violation of the Act is a separate inquiry from whether a
violation of the Act has occurred. Issues such as attorney fees and penalties are only
considered once a respondent has been found in violation of the Act or the Board’s regulations.
Since the second part of the second affirmative concerns the imposition of attorneys’ fees and
not the cause of action, it is not a proper affirmative defense.
See
People v. Midwest Grain
Products of Illinois,
PCB 97-179, slip op. at 5 (Aug. 21, 1997); People v. Douglas Furniture
of California, PCB 97-133, slip op. at 4, 6 (May 1, 1997). Thus, the Board also strikes the
second part of the second affirmative defense.
Third Affirmative Defense
In its third affirmative defense, Stein invoked the doctrine of
laches
. Stein stated that
complainant waited four years to file the first amended complaint after the events at issue
occurred. Ans. at 9.
Complainant contended that
laches
is not an affirmative defense to alleged violations of
the Act or the Board’s regulations. Complainant stated that
laches
is an affirmative defense
only to actions in equity, not enforcement actions before the Board. Mot. Str. at 2-3.
Stein argued that, although the application of
laches
to government bodies is generally
disfavored, the State does not have absolute immunity from
laches
. Resp. at 4-5. Stein also
pointed to People v. State Oil Co.
et al
, PCB 97-103, slip op. at 3-4 (May 18, 2000) as proof
that the Board has refused to strike
laches
as an affirmative defense.
5
Stein claimed that the
laches
defense is appropriate where there has been a substantial
delay between the occurrence and the filing of the complaint. Stein also claimed that witnesses
to the alleged facts would no longer be available or would have faded memories due to the
lapse of time. Ans. at 9; Resp. at 4, citing Bultas v. Board of Fire and Police Commissioners
of the City of Berwyn , 171 Ill. App. 3d 189, 195, 524 N.E.2d 1172, 1176 (1st Dist 1988).
Discussion
Laches
is an equitable doctrine which bars relief where a defendant has been misled or
prejudiced because of a plaintiff’s delay in asserting a right. City of Rochelle v. Suski, 206 Ill.
App. 3d 497, 501, 564 N.E.2d 933, 936 (2nd Dist. 1990). There are two principal elements
of
laches
: “lack of due diligence by the party asserting the claim and prejudice to the opposing
party.” Van Milligan v. Board of Fire and Police Commissioners, 158 Ill. 2d 85, 89, 630
N.E.2d 830, 833 (1994).
The Illinois Supreme Court has held:
It is of course, elementary that ordinary limitations statutes and principles of
laches
and estoppel do not apply to public bodies under usual circumstances,
and the reluctance of courts to hold governmental bodies estopped to assert their
claims is particularly apparent when the governmental unit is the State. There
are sound bases for such policy . . . . [A]pplication of
laches
or estoppel
doctrines may impair the functioning of the State in the discharge of its
government functions, and . . . valuable public interests may be jeopardized or
lost by the negligence, mistakes or inattention of public officials.
But it seems equally true that the reluctance to apply equitable principles against
the State does not amount to absolute immunity of the State from
laches
and
estoppel under all circumstances. The immunity is a qualified one and the
qualifications are variously stated. It is sometimes said that
laches
and estoppel
will not be applied against the state in its governmental, public or sovereign
capacity, and it cannot be estopped from the exercise of its police powers or in
its power of taxation or the collection of revenue.
It has, however, been stated with frequency that the State may be estopped when
acting in a proprietary, as distinguished from its sovereign or governmental
capacity and even, under more compelling circumstances, when acting in its
governmental capacity. Hickey v. Illinois Central Railroad Co., 35 Ill. 2d 427,
447-448, 220 N.E.2d 415, 425-426 (1966) (citations omitted).
The Court reaffirmed Hickey more recently in Van Milligan.
See
Van Milligan, 158
Ill. 2d 85, 90-91, 630 N.E.2d 830, 833.
6
The Board has held that
laches
may apply to the Board in its governmental capacity
which would mean that a respondent must prove that “compelling circumstances” warrant the
application of the doctrine.
See
State Oil, PCB 97-103, slip op. at 3 (May 18, 2000).
The Board has struck the affirmative defense of
laches
in the past.
See, e.g.,
People v.
Big O, Inc., PCB 97-130 (Apr. 17, 1997), slip op. at 1. However, as Stein cited, the Board
did not strike the affirmative defense of
laches
in State Oil. Nor did the Board strike the
affirmative defense of
laches
in Royster-Clark.
See
Royster-Clark, PCB 02-08, slip op. at 5-6
(Jan. 24, 2002). The Board finds that Stein has pleaded sufficient facts to raise the affirmative
defense of
laches
and that there may be a possibility that Stein will prevail. However, the
Board need not discuss the merit of the defense at this point, and concludes only that the
alleged defense should not be stricken.
Fourth Affirmative Defense
In its fourth affirmative defense, Stein claimed that the statutory and regulatory
violations that it allegedly violated in count I (Section 9(a) of the Act and Section 201.141 of
the Board’s regulations) are identical and duplicitous. Stein claimed that the alleged violation
of Section 201.141 should be dismissed or that the alleged violations in count I should be
pleaded as alternatives. Ans. at 9.
Complainant contended that the identical nature of Section 9(a) of the Act and Section
201.141 of the Board’s regulations does not constitute an affirmative defense. Mot. Str. at 3.
Stein claimed that it is being prosecuted twice for one violation. Resp. at 5.
Discussion
Section 9(a) of the Act and Section 201.141 of the Board’s procedural regulations are
similar. Both provisions generally state that no person shall cause, threaten, or allow the
emission of any contaminant into the environment so as to cause air pollution. Section 9(a) of
the Act states that it is a violation to violate any regulations adopted by the Board, such as 35
Ill. Adm. Code 201.141.
The Board has routinely found parties to be in violation of both Section 9(a) of the Act
and Section 201.141 of the Board’s regulations.
See, e.g.,
People v. Aabott Asbestos, PCB
99-189, slip op. at 4, 13 (Apr. 5, 2001); People v. Fults, PCB 96-118, slip op. at 5, 9
(Mar. 20, 1997). Furthermore, in Royster-Clark the Board struck an affirmative defense citing
the identical and duplicitous nature of Section 12(f) of the Act and Section 304.141(a) of the
Board’s regulations - both of which prohibit water pollution in excess of limits in an NPDES
permit.
See
Royster-Clark, PCB 02-08, slip op. at 5 (Jan. 24, 2001).
The Board accordingly
strikes Stein’s fourth affirmative defense.
7
Fifth Affirmative Defense
In its fifth affirmative defense, Stein claimed that it did not cause, threaten, or allow the
alleged violations in the complaint. Ans. at 9. As with the second affirmative defense,
complainant contended that the fifth affirmative defense is merely a restatement of Stein’s
denial in its answer. Mot. Str. at 3.
Discussion
The facts that Stein alleged in its fifth affirmative defense could defeat part of the
complaint. Causing, allowing, or threatening air pollution are elements of Section 9(a) of the
Act and Section 201.141 of the Board’s regulations, which Stein allegedly violated. Stein
could possibly prevail on count I of the complaint if it is able to prove that it did not cause,
threaten, or allow air pollution. The Board finds that the fifth affirmative defense should not
be stricken.
Sixth Affirmative Defense
In its sixth affirmative defense, Stein claimed that complainant did not allege facts to
show that particulate matter emissions from the Stein facility violated applicable regulatory
standards. Ans. at 9.
Arguments
Complainant contended that it is not required to prove an emission of a particulate
emission standard in order to prove a violation of Section 9(a) of the Act or Section 201.141 of
the Board’s regulations. Mot. Str. at 3-4. Stein responded that failure to allege proper facts is
a common affirmative defense and that it advances the argument beyond a denial of the
allegation. Resp. at 3.
Discussion
Stein’s sixth affirmative defense gives color to complainant’s allegation and asserts a
new matter. However, complainant’s motion to strike correctly and accurately attacks the
legal sufficiency of the defense. The Board finds that the motion to strike is persuasive.
Complainant need not allege violations of particulate matter emission standards in order to
prove violations of the cited provisions of the Act, the Board’s regulations, and Stein’s
FESOP. The Board strikes Stein’s sixth affirmative defense.
8
Seventh Affirmative Defense
In its seventh affirmative defense, Stein claimed that it had submitted at least three
operating programs to the Agency that complied with applicable regulatory requirements.
Ans. at 10.
Arguments
Complainant contended that the seventh affirmative defense is not a defense to
allegations in the complaint and therefore not an affirmative defense. Mot. Str. at 4. Stein
claimed that the seventh affirmative defense adds new information defeating the portion of the
complaint regarding Stein’s alleged inadequate operating program. Resp. at 5.
Discussion
Like the fifth affirmative defense, the facts that Stein has alleged in its seventh
affirmative defense could defeat part of the complaint. The existence of a valid operating
program is at the heart of the alleged violations of Section 212.309(a) of the Board’s
regulations and Section 9(b) of the Act. Stein could possibly prevail on part of count II of the
complaint if it is able to prove that it was operating according to a valid operating program.
The Board finds that the seventh affirmative defense should not be stricken.
CONCLUSION
The Board grants the motion to strike in part and denies it in part. The Board grants
the motion to strike Stein’s first, second, fourth, and sixth affirmative defenses. The Board
denies the motion with respect to Stein’s third, fifth, and seventh affirmative defenses. In so
ruling, the Board makes no finding as to the merits of the complaint. Stein will have the
opportunity to address the issues raised in its answer, including the issues raised in the stricken
affirmative defenses, at hearing. The Board directs the hearing officer to proceed
expeditiously to hearing in this matter.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on April 18, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
