RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB
262004
STATE OF
ILLINOIS
PEOPLE
OF THE STATE OF ILLINOIS
)
Pollution Control Board
)
Complainant,
)
vs-
)
PCBNo.O1-7
)
(Enforcement
-
Air)
QC FINISHERS, INC., an Illinois corporation,
)
)
Respondent.
)
NOTICE OF
FILING
TO:
Heidi Hanson
H. E. Hanson, Esq. P.C.
4721
Franklin Ave., Suite
1500
Western Springs, Illinois
60558-1720
Mr. BradleyHalloran, Hearing Officer
illinois Pollution Control Board
100 W. Randolph,
11th fir.
Chicago, illinois 60601
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk ofthe
Pollution Control Board the original and nine copies ofComplainant’s Motion to Dismiss
Supplemental Affirmative Defenses on behalf ofthe People ofthe State ofIllinois, copies of
which are attached herewith and
served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
State ofIllinois
7)
BY:
~
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188
W.
Randolph St.
-
20th Fl.
Chicago, IL
60601
(312) 814-1511
DATED:
February 26, 2004
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL ~OAF~1gB
262004
STATEOF ILLINOIS
Pollution Control Board
PEOPLE OF THE STATE OF ILLINOIS
Complainant,
vs-
)
PCB No.
01-7
(Enforcement
-
Air)
QC FINISHERS,
INC.,
an Illinois
corporation,
Respondent.
MOTION TO DISMISS SUPPLEMENTAL AFFIRMATIVE DEFENSES
Now comes Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General of the State of Illinois,
pursuant
to the January
8,
2004 Board Order, and in response to
Respondent’s Affirmative Defenses receikred by this Office on
February
5,
2004, moves to strike all Supplemental Affirmative
Defenses,
and in support thereof,
states as follows:
INTRODUCTION
The Board’s January
8,
2004 Order gave Respondent leave to
file a supplemental answer setting forth any affirmative
defenses.
Respondent has not filed a supplemental answer but
•instead has filed Supplemental Affirmative Defenses. Respondent’s
Supplemental Affirmative Defenses properly state the current
status of the Respondent’s various affirmative defenses.
This
Motion will address the seven “Revised” Affirmative Defenses that
are the subject of Respondent’s February 2004 filing.
Three of
the “Revised” affirmative defenses are general affirmative
defenses based on laches,
estoppel,
and waiver.
The other four
“Revised” affirmative defenses are to specific counts in the
Complaint. Complainant contends that none of these “Revised”
Affirmative Defenses offers any new arguments or facts that were
not previously argued in its initial Answer and Affirmative
Defenses filed on March
1,
2003.
Nonetheless,
the Complainant
will respond to each one.
By way of background,
on July 14,
2000,
Complainant, People
of the State of Illinois
(“State”),
filed a seven-count complaint
against Respondent,
QC Finishers,
Inc.
(“QC”)
.
The complaint
alleges that QC committed numerous violations of the Illinois
Environmental Protection Act
(“Act”), 415 ILCS 5/1 et
seq.
(2002), and regulations thereunder.
Count
I
is titled
Construction Without a State Permit,
Count
II
Operating Without a State Permit,
Count
III
Failure to Comply
With Emission Limitations,
Count
IV
Failure
to Timely Develop and
Submit Fugitive Matter Emission Program,
Count V
Failure to
Timely File an ERMS Application,
Count VI
Operating Without a
CAAPP Permit,
and Count VII
Making a Major Modification Without a
Permit.
As stated,
on March
1,
2003,
QC filed its original
Answer and Affirmative Defenses.
STANDARD
Under 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
2
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.,
210
Ill.
App.
3d
701,
709,
569 N.E.2d 518,
523
(2nd 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 plaintiff,
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
Ill. App.
3d.
559,
569-570,
299 N.E.2d 521,
527
(1st 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) (2002)
.
Finally, the facts
establishing an affirmative defense must be pled with the same
degree of specificity required by a plaintiff
•to establish a
cause of action.
International Insurance Co.
v.
Sargent & Lundy,
242 Ill. App.
3d 614,
609 N.E.2d 842,
853
(1st Dist.
1993)
3
SPECIFIC AFFIRMATIVE
DEFENSES
A.
Affirmative Defense to Count III.
Respondent states that under an alternative Board regulation
it was in compliance by January of 2000.
This affirmative
defense does not address any new facts outside the complaint.
Count III alleges violations since
1991 and 1996.
Subsequent
compliance,
if true,
is not an affirmative defense.
See Section
33(a)
of the Act,
35 ILCS 5/33(a).
It may be used for other
purposes but
it certainly does not make the Respondent
less
liable for its earlier violations.
This defense should be
dismissed..
B. Affirmative Defenses to Count IV.
ist
Affirmative Defense
Respondent argues in this defense that
it was not
at any
time located in the geographical areas described in 35
Ill.
Adm.
Code 212.324 (a) (1).
Section 212.309 refers to emission units
described in Section 212.302, which includes parking lots.
Section 212.302 states that all manufacturing operations located
in any townships of Cook County are subject to 212.309.
This
affirmative defense does not allege any new facts or arguments.
Accordingly,
this affirmative defense should be dismissed.
2nd
Affirmative
Defense
Respondent’s argument on this defense
is that because a
parking lot
is paved,
it cannot be an emission unit. The
4
definition of an emission unit as stated by Respondent
is
‘any
part or activity at a stationary source that emits or has the
potential
to emit.’ Even if a parking lot is paved, because of
the nature
of the business on the premises,
particulate matter
could still be emitted by the activity of the trucks driving on
or off the parking area or other activities occurring on the lot.
Because this defense
is argumentative, and merely raises an
interpretation of the
law,
it should be dismissed as an
affirmative defense.
C.
Affirmative Defense
to Count VI.
Respondent states in the argument that it received a FESOP
in May of 2002 which excluded it from the Clean Air Act Program.
As stated previously,
compliance at a later date does not excuse
violations from 1995 until May of 2002.
It has not alleged any
new facts or arguments.
GENERAL AFFIRMATIVE DEFENSES TO ALL COUNTS
A.
Laches
QC raises an affirmative defense to all Counts that it
pleads as laches but which,
in substance,
contends that the
Illinois Environmental Protection Agency
(“Illinois EPA”)
failed
to notify QC what the statutes and regulations required.
The
specious argument continues stating that the State is responsible
for any confusion that arises because of Cook County’s permitting
5
requirements, and that a Cook County inspector allegedly informed
the Respondent that
it did not need a State permit.
QC’s so-called laches defense further alleges failure to
exercise due diligence on the part of the State by failing to
inform QC what the state permit and emission requirements were.
Thus,
QC contends that the State is liable for Respondent’s non-
compliance.
The defense of laches does not apply to the allegations made
in the first general affirmative defense.
Viewing this
affirmative defense as a laches defense results
in the conclusion
that it should be stricken for the following reasons.
Laches is an equitable principle that bars an action where,
because of delay in bringing suit,
a party has been misled or
prejudiced,
or has taken a course of action different from that
which it might have otherwise taken absent the delay.
Patrick
Media Group,
Inc.
v. City of Chicago,
255 Ill.App.3d
1,
626
N.E.2d 1066,
.1071
(1st Dist.
1993)
.
The delay must have been
unreasonable.
City of Rolling Meadows v. National Advertising
Company,
228 Ill.App.3d 737,
593 N.E.2d 551,
557
(1st Dist.
1992)
As stated above,
the facts establishing an affirmative
defense must be pleaded with the same degree of specificity
required by a plaintiff to establish a cause of action.
QC does
not even allege that there was a delay in bringing the suit.
QC
6
alleges no facts showing any delay on the.part of the State in
bringing suit,
only that the State took no action to inform QC of
its permitting and emission requirements.
QC merely states,
in
abbreviated fashion, that “Complainant failed to exercise due
diligence and thereby caused prejudice to Respondent,
as a result
it would be inequitable
to allow Complainant
to pursue this cause
of action.
.
.“
This defense fails to set forth key elements of a laches
defense.
Rather,
the defense
is a series of statements that lack
the specificity required for pleading a claim or a defense,
and
should be dismissed.
Assuming that the defense of laches was properly pled,
the
State argues that the doctrine of laches is disfavored when the
defense is raised against a plaintiff who is exercising its
government function and protecting a substantial public interest.
Illinois courts have been reluctant to apply laches when it might
impair the State in the discharge of its government function.
Cook County
v.
Chicago Magnet Wire Corp.,
152 Ill.App.3d
726,
727-28,
504 N.E.2d 904,
905
(1st Dist.
1987)
.
As a general
proposition, the doctrine of laches does not apply to the
exercise of governmental
functions.
Hickey v.
Illinois Central
R.R.
Co.,
35 Ill.2d 427,
447,
220 N.E.2d 415
(1966)
Several courts have explicitly held that the doctrine of
laches does not apply to the exercise of a governmental function.
7
See
e.g.
In
re
Vandeventer’s
Estate,
16 I1l.App.3d 163,
165,
305
N.E.2d 299,
301
(4tl~
Dist.
1973);
In re Grimley’s Estate,
7
Ill.App.3d 563,
566,
288 N.E.2d 66,
67
(4th
Dist.
1972);
Shoretime Builder Co.
v.
City of Park Ridge,
60 Ill.App.2d 282,
294,
209 N.E.2d 878,
884-885
(1st Dist.
1965)
As the Illinois Supreme Court stated:
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
.
.
.
More
importantly perhaps is the possibility that application
of laches or estoppel doctrines may impair the
functioning of the State in the discharge of its
government functions,
and that valuable public
interests may be jeopardized or lost by mistakes or
inattention of public officials.
Hickey,
35 Ill.2d at 447-448, 220 N.E.2d at 425-426.
With its complaint,
the State seeks to exercise its
government function
--
the enforcement of environmental statutes
and regulations.
The State is charged with this function as
is
stated in the Act.
Section 4(e)
of the Act,
415 ILCS 5/4(e),
charges the Illinois EPA with the duty to take summary action to
enforce violations of the Act.
Section
2 of the Act,
415 ILCS
5/2,
states:
~It is the purpose of this Act
.
.
.
to establish a
unified, state-wide program
.
.
.
to restore, protect and enhance
the quality of the environment, and to assure that adverse
effects upon the environment are fully, considered and borne by
those who cause them.
TI
8
This
is precisely the government function the State’s
complaint serves.
As such,
the defense of laches is unavailable
toQC.
Courts have consistently refused to allow the defense of
laches when the plaintiff,
even a private party plaintiff,
seeks
to protect a substantial public interest.
See Lake Michigan
Federations
v.
U.S. Army Corps of Engineers,
742 F.Supp.
441,
446-447
(the court denied the defense of laches against a private
party seeking to protect the public right to a safe,
healthful
environment)
This
is especially the case with environmental enforcement
actions.
See Park City Resource Council, Inc.
v.
U.S. Department
of Agriculture,
817 ...F.2d 609,
617
(10th Cir.
1987) (“Laches must
be involved sparingly in environmental cases because ordinarily
the plaintiff will not be the only victim of alleged
environmental damage.
A less grudging application of the
doctrine might defeat Congress in environmental policy.”)
Here,
clearly, the enforcement of standards relating to air
quality is a substantial and vital public interest.
To allow QC
to assert the defense of laches would impair the State
in the
exercise of
its, government function in seeking to protect a
substantial public interest and,
most important,
would deprive
the people of this State of a clean and healthful environment.
This cause of action fits squarely with the courts’
holdings of
9
the
type
of case where laches
is disfavored.
Looking behind the “laches” label, QC is really alleging
that
it is the State’s responsibility to educate QC on the
requirements of the law.
QC offers no authority for this
assertion and cannot,
because there is none. The Act and
regulations place the responsibility for compliance on the
business operating in the State and impose consequences on those
who fail to comply. QC’s absurd suggestion that its violation of
environmental laws
is excusable because of State actions or
inactions
is contrary to the plain language of the Act and its
legislative purpose.
Section 2(b)
of the Act provides as follows;
(b)
It is the purpose of this Act,
as more specifically
described in later sections,
to establish a unified, state-
wide program supplemented by private remedies,
to restore,
protect and enhance the quality of the environment,
and to
assure that adverse effects upon the environment are fully
considered and borne by those who cause them. 415 ILCS
5/2(b) (2002)
Even taking as true QC’s allegations in this defense,
no legally
recognized defense would be available.
QC’s affirmative defense
citing laches should be dismissed, with prejudice.
B.
Estoppel
The next affirmative defense asserted by QC as to each count
is that the State is equitably estopped from bringing the claim.
The allegations in this so-called defense are the same as that in
the laches argument but draws the conclusion that the State, by
10
failing to disseminate information and address confusion caused
by Cook County ordinances,
“induced Respondent
to rely on the
Cook County Inspector’s erroneous assessment
of Respondent’s
compliance status.” Because of this,
Complainant should be
estopped from asserting the violations set forth in the
Complaint.
This argument seeks to relieve the Respondent from
knowing and following the law and makes the alleged -incompetence
of a Cook County inspector the State’s responsibility.
As stated
above,
the facts establishing an affirmative defense must be pled
with specificity.
The defense of equitable estoppel must be specifically
pleaded or it
is waived.
Hubble
v.
O’Connor,
291 Ill.App.3d 974,
684 N.E.2d 816,
823
(1st Dist.
1997);
Dayan
v. McDonald’s
Corporation,
125 Ill.App.3d 972,
466 N.E.2d 958,
977
(1st Dist.
1984)
The elements of the defense are:
1)
words or conduct by the
plaintiff amounting to a misrepresentation or concealment of
material facts;
2)
the plaintiff must have had knowledge at the
time the representations were made that they were untrue;
3)
the.
defendant must not have ‘known the truth respecting the
.
representations when the representations were made and acted on
by the defendant;
4)
the plaintiff must intend or reasonably
expect that its conduct or representations will be acted upon by
the defendant;
5)
the defendant must have in good faith relied
11
upon the misrepresentation to its detriment;
and 6)
the defendant
must be prejudiced if the plaintiff
is permitted to deny the
truth of the representations or conduct.
Vaughn
v.
Speaker,
126
I1l.2d 150,
533 N.E.2d 885,
890
(1989);
Elson
v.
State Farm Fire
and Casualty Company,
295 Ill.App.3d
1,
691 N.E.2d 807,
817
(1st
Dist.
1998)
QC makes no allegation in its equitable estoppel defense
that any individual acting for or on behalf of the State
misrepresentedany material fact to or concealed a material fact
from any individual acting for or on behalf of QC.
To establish estoppel against the State,
there
mu-st be an
affirmative act by the State inducing reliance on the part of the
defendant
to its detriment.
People ex rel. Northfield Park
District v. Glenview Park District,
222 Ill.App.3d 35,
582 N.E.2d
1272,
1280
(1st Dist.
1991)
The second through sixth elements of the defense assume that
such a misrepresentation or concealment occurred.
Thus,
QC’s
failure to allege the first element means the entire defense must
fail.
Even so,
QC makes no factual allegations relative to the
second through sixth criteria.
Having failed to plead the
elements of equitable estoppel with specificity,
this defense
should be dismissed.
It
is a well-established rule of law that the doctrine of
estoppel may not be asserted against the State
in actions
12
involving public rights.
In
Tn -County Landfill
v.
Pollution
Control Board,
41 Ill.App.3d 249,
353 N.E.2d 316
(2nd Dist.
‘1976),
the court held that estoppel would deny the people of
Illinois their constitutional right
to a healthful environment.
In
that’ case,
the court reasoned that permitting estoppel would
be permitting the denial of the public’s right to a clean
environment.
Id.
at 255,
353 N.E.2d at 322.
The right to a
clean environment has been held to be a public right.
Pielet
Bros.
Trading
v.
Pollution Control Board,
110 Ill.App.3d 752,
758,
442 N.E.2d at 1379
(5th Dist.
1982)
The instant case
is an action involving a public right.
The
People are seeking remediation of air emissions that are
potentially injurious to the public health and the environment.
The Attorney General has brought this action to protect the
People of the State of Illinois’
right to a clean and healthy
environment.
~onsequently,
the doctrine of estoppel
is improper,
in this case.
Moreover,
Illinois case law provides that
“.
.
.
the
doctrine of estoppel applies against the State only when some
positive acts by the State officials may have induced an action
by the adverse party under circumstances where it would be
inequitable to hold the adverse party liable for the act so
induced; mere inaction by the State is not sufficient to invoke
estoppel.T~
Pavlakos v. Department of Labor,
111 I1l.2d 257,
265,
13
489 N.E.2d 1325,
1328
(1985)
(citing Hickey
at 447-449)
QC has not pled any positive acts of State officials that
may have induced its actions,
or how such acts induced its
actions, nor has QC pled facts sufficient to establish that
it
would be inequitable
to hold QC liable for environmental
violations.
It has only pled inaction on the State’s part for
failing to notify the Respondent
of what permits are required,
which
is insufficient for the defense of estoppel.
Additionally, QC must plead exceptional circumstances before
the doctrine can be invoked against
a public body.
People ex
rel.
Brown
v.
State Troopers Lodge No.
41,
7 Ill.App.3d 98,
104-
105,
286 N.E.2d 524,
528-529
(4th Dist.
1972);
Monarch Gas v.
Illinois Commerce Commission,
51 Ill.App.3d 892,
898,
366 N.E.2d
945
(5th Dist.
1977).
QC neglected to plead any exceptional
circumstances in its affirmative defense of estoppel.
Moreover,
as with QC’s so-called laches defense, the clear absence of any
basis in law for QC’s conditioning its duty to comply on State
notification or clear explanation
of’ such duty serves to
illustrate’ the frivolous nature of this defense.
It should be
considered
as such and promptly dismissed.
QC’s purported defense of equitable estoppel
is insufficient
as a matter of law, and should be dismissed.
14
C.
Waiver
QC’s last affirmative defense to all Counts states the facts
as previously alleged in the other general affirmative defenses,
but concludes this time with “The State chose knowingly,
and for
its own purposes not to pursue contacts with small,
county
permitted sources such as QC Finishers,
while also being fully
aware that such could have averted noncompliance.”
Respondent
argues that because of this,
the State waived its right to pursue
a cause of action against the Respondent.
However, the
affirmative defense of waiver is unavailable to Respondent
because a waiver is an intentional relinquishment of a known
right.
Pantle
v.
Industrial Commission,
61 Ill.2d 365,
372,
335
N.E.2d 491
(1975).
There must be both knowledge, of the existence
of the right and an intention to relinquish it.
Id.
While the
State is certainly aware of its right to pursue violators of
environmental statutes and regulations,
it has not waived any
rights,
either explicitly or even implicitly.
The Respondent
is
evidently confusing the defense of estoppel with the doctrine of
waiver.
For the reasons stated above,
this argument asserted to
be -an’affirmative defense should be dismissed with prejudice as a
matter of law.
15
CONCLUSION
For the foregoing reasons, the Complainant respectfully
requests that QC’s Supplemental Affirmative Defenses be
dismissed,
with prejudice.
-
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN,
Attorney
General
of the State of Illinois
By:
~
~
A J/~~
JL~)
PAULA BECKER WHEELER
Assistant Attorney General
Attorney for Complainant
Environmental Bureau
188 W. Randolph St.,
20th
Fl.
Chicago, Illinois 60601
(312)
814-1511
16
CERTIFICATE
OF SERVICE
I,
Paula Becker Wheeler,
ap Assistant Attorney General in this
case, do certify that on this 26th day of February 2004,
I caused to
be served the foregoing Notice of Filing and Motion To Dismiss
Supplemental Affirmative Defenses upon the persons named within by
mail and depositing same in the U.S. Mail depository located at 188
West Randolph Street,
Chicago,
Illinois,
in an envelope with
sufficient postage prepaid
~
g,~
L
~
t’
PAULA
BECKER WHEELER
2
