ILLINOIS POLLUTION CONTROL BOARD

September 18, 2003

 

PEOPLE OF THE STATE OF ILLINOIS, )

 

  

  

  

  

  

  

)

Complainant, )

 

  

  

  

  

  

  

)

v. ) PCB 03-73

) (Enforcement - Land)

RIVERDALE RECYCLING, INC., and )

TRI-STATE DISPOSAL, INC., )

 

  

  

  

  

  

  

)

Respondents. )

 

DISSENTING OPINION (by T.E. Johnson):

 

I respectfully dissent from the Board's order issued today in this matter. I believe the

Board should have accepted the affirmative defenses in question as pled. As the Board has

previously held, 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.

See

People v. Chiquita,

PCB 02-56 (Apr. 18, 2002). Further, when asserting an affirmative defense, the test is whether

the defense gives color to the opposing party's claim and then asserts new matter by which the

apparent right is defeated.

Id

.

 

At issue here is a two-count open dumping case that alleges violations of 21(a) and (d) of

the Environmental Protection Act (Act). I believe that the respondents’ assertions that the

agency told them it was acceptable to store the debris in an unpermitted area, and that the debris

was authorized for storage without a permit constitute properly pled affirmative defenses.

Section 22.38 of the Act was not referenced until raised by the respondents as an affirmative

defense. Both the first and second affirmative defenses are new and, if true, will defeat the

government's claim.

 

Although I am heartened that the majority is not granting the motion to dismiss, I do not

believe that any additional pleading is necessary.

 

For these reasons, I respectfully dissent.

 

Thomas E. Johnson

Chairman of the Board

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2

 

 

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above

dissenting opinion was submitted on September 23, 2003.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board