BEFORE

THE

ILLINOIS POLLUTION CONTROL BOARD

PEOPLE

OF THE STATE OF ILLiNOIS,

)

lIVED

)

CLERK’S

OFFICE

Complamant,

)

SEP

022003

vs.

)

No. PCB 03-73

STATE OF ILLINOIS

RIVERDALE RECYCLING,

INC., an

)

Pollution

Control Board

Illinois corporation, and TRI-STATE

)

DISPOSAL, INC., an illinois corporation,

)

)

Respondents.

)

NOTICE OF

FILING

TO:

Ms. Dorothy Gunn, Clerk, Pollution Control Board, 100W. Randolph, Suite

11-500, Chicago,

IL

60601

Ms.

Paula Becker Wheeler,

Assistant

Attorney General,

Environmental

Bureau,

188

W.

Randolph, Suite 2001,

Chicago, Illinois 60601

Mr. ChristopherGrant, Assistant Attorney General, EnvironmentalBureau, 188 W. Randolph,

Suite 2001,

Chicago, Illinois 60601

Mr. Brad Halloran,HearingOfficer, Pollution Control Board, 100 W. Randolph, Suite 11-500,

Chicago, IL

60601

PLEASE TAKENOTICE that on September 2, 2003 the undersignedfiled an original andnine

copies of RESPONDENTS’

RWERDALE

RECYCLING, INC. AND

Tifi-STATE

DISPOSAL,

INC.’S RESPONSE TO COMPLAINANT’S MOTIONTO DISMISS AFFIRMATIVEDEFENSES,

with Ms. Dorothy Gunn, Clerk ofthe Illinois Pollution Control Board, 100W. Randolph Street, Suite

11-500, Chicago, Illinois 60601, a copyofwhich is attached and hereby served upon you.

One ofthe Attorneys

for Respondents

Mark A. LaRose

Clarissa C. Grayson

LaRose & Bosco, Ltd.

AttorneyNo. 37346

734 N. Wells Street

Chicago,IL

60610

(312) 642-4414

Fax (312) 642-0434

TifiS FILING IS SUBMITTED ON RECYCLED PAPER.

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BEFORE THE ILLINOIS POLLUTION CONTROL BOA

CLERK’S

OFFICE

PEOPLE

OF THE STATE OF ILLINOIS,

)

SEP

~

)

1!22003

Complainant,

-vs-

)

No. PCB

03-73

ard

)

(Enforcement)

RIVERDALE RECYCLING, INC.,

)

an illinois corporation, and

)

TRI-STATE DISPOSAL, INC.,

)

an Illinois corporation,

)

)

Respondents.

)

RIVERDALE

RECYCLING, INC.

AND

Tifi-STATE

DISPOSAL. INC.’S RESPONSE

TO

COMPLAINANT’S MOTION TO DISMISS AFFIRMATIVE DEFENSES

Respondents, Riverdale Recycling, Inc. (“RRI” or“Respondent”) and Tn-State Disposal, Inc.

(“Tn-State” or “Respondent”) by and

through its

attorneys LaRose & Bosco,

Ltd., respond to the

Peopleofthe StateofIllinois’ (“Complainant”)Motion to DismissAffirmativeDefenses,and moves

the Board to deny Complainant’s motion, and in support thereof, state as follows:

INTRODUCTION

On November

19,

2002,

Complainant

filed a complaint

alleging that RRI

and Tn-State

(“Respondents”)engagedin the open dumping ofwaste in violationofthe Environmental Protection

Act (“the Act”) and conducted a waste storage operation outside ofthe Permitted Area in violation

oftheirpermit.

On July

11, 2003

1,

Respondents RRI and Tri-State filed its answer and affirmative

defenses.

On

August

12,

2003,

Complainant

filed

its

motion

to

dismiss

RRI

and Tn-State’s

‘Because the parties engaged in extensive settlement negotiations, Respondents’

oral

motions for an extension oftime to answer the complaint were granted on January 27,

2003,

February 13,

2003, March 24, 2003, and April 23,

2003 when Respondents were ordered to

answer the complaint

on orbefore July

11, 2003.

1

---

affirmative defenses.

Respondents’ responseis timelyfiledpursuant to 35 I.A.C Section 101.500(d).

RRI and Tri-State’ s affirmative defenses are as follows:

First Affirmative Defense

Thewaste observed on December 2, 1999 and March 12, 2001 outside ofthe PermittedArea

was general construction and demolition debris (415 ILCS 5/3.78) which is

authorized for storage

without a permit pursuant to

Section 22.38 ofthe Act

(415 ILCS

5/22.38).

Respondents are

therefore in compliance with the Act pursuant to Section 22.38 ofthe Act (415 ILCS

5/22.38).

Second Affirmative Defense

At

a

pre-enforcement

conference

held

on

September

15,

1999

in

Maywood,

Illinois,

Respondents were advised by CliffGould and James Haennicke ofthe IEPA that itwas acceptable

for Respondents to

store general construction and demolition debris in any unpermitted area ofthe

Sitepursuant to Section 22.38

ofthe Act as long as proper notice was given to the IEPA and proper

procedures were followed.

Therefore, the activities undertaken by the Respondents

were both in

compliance

with Section 22.38 ofthe Act and undertaken in a manner specifically suggested and

approved by personnel in the Agency’s enforcement division.

ARGUMENT

Insupport ofits motion to strikeRespondents’ affirmative defenses, Complainant argues that

the first affirmative defense should be strickenon the grounds th~tit

contains only abroad assertion

that Respondents are in compliance the Act because they acted in accordance with Section 22.38 of

the Act.

(Complainant’s Motion, p.2).

However, Respondent’s first affirmative defense

also

contains the factual assertions that the waste observed on December 2,

1999 and March

12, 2001,

was general construction

and demolition debris.

2

---

The

facts

constituting an

affirmative

defense

must

be

plainly

set

forth

in

the

answer.

International Insurance Co.

v.

Sargent& Lundy, 242 Ill.App.3d 614,

630, 609 N.E.2d 842,

853

(1St

Dist.

1993).

Where the well-pleaded facts ofan affirmative

defense raise the possibility that the

party assertingthem will prevail, the defense should not be stricken.

~.,

242 Ill.App.3d at 631, 609

N.E.2d at 854.

Respondents need not prove their case in pleading their affirmative defenses; it is

sufficient that they raise the possibility that they will prevail.

Id.

Nevertheless, Complainant moves to dismiss

the first affirmative defense as falling “well

short

of the

standard

required

by

the

Board.”

(Complainant’s Motion,

p.3).

In

doing

so,

Complainant

cites absolutely no

case law

that

supports the existence of a specific

standard for

pleading

an affirmative defense under

Section 22.38, but

merely recites the language of the law

which was cited by the Respondents for their affirmative defense.

jç~.

The fact remains, however,

that the Respondents have complied with the general standard ofpleading affirmative defenses as

even presented by

Complainant.

~.

at

2.

Rather than attacking the truth of the claim, the first

affirmative defense alleges compliance with the statute, an argument “that iftrue, will defeat

...

the

government’s claim even if all allegations in the complaint are true.”

See

Complainant’s Motion,

p.2.

In their first affirmative defense, Respondents have pled the facts that the waste observed

during the inspections at issue was general construction and demolition debris which is authorized

for storage without a permit pursuant to

Section 22.38 of the Act.

(415 ILCS

5/22.38).

Because

these

facts raise the possibility

that Respondents

will ultimately prevail

on the merits,

the first

affirmative defense should not be dismissed.

Similarly,

Complainant

argues

that

the

second

affirmative

defense should be

dismissed

3

---

because Respondent’s have failed to allege any newfacts.

(Complainant’s Motion, p.5).

The facts

allegedby Respondents arethat the activities undertaken by theRespondents were done “in a manner

specifically

suggested

and

approved by personnel

in

the Agency’s enforcement division,”

in

a

discussion

with

IEPA

employees,

Cliff

Gould

and

James

Haennicke

while

attending

a pre-

enforcement conference. While it is unfortunate that the “complainant is unsure as to therneaning

of this allegation,” the Respondents have, in fact, brought forth new facts

and allegations “that if

true, will defeat

...

the government’s claim even if all

allegations in the complaint are true.”

See

Complainant’s Motion p.

2. As is the case with the facts pled in the first affirmative defense, the

facts

contained

in the

second

affirmative

defense

raise

the

possibility

that

Respondents will

ultimately prevail on the merits.

Therefore, Respondent’s

second affirmative defense should not

be dismissed.

WHEREFORE, Respondents respectfullyrequest that theBoard deny Complainant’s Motion

to

Dismiss Affirmative Defenses; or in the alternative,

grant Respondents

leave

to

amend their

answer and replead their affirmative defenses.

Respectfully Submitted,

CTC~~

One ofRespondents

Attorneys

Mark A. LaRose

Clarissa C.

Grayson

LAROSE & BOSCO,

LTD.

734 North Wells Streete

Chicago IL 60610

(312)642-4414

fax (312) 642-0434

4

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CERTIFICATE OF SERVICE

The

undersigned,

an

attorney,

certifies

that

a

copy of the foregoing

RESPONDENTS

RWERDALE

RECYCLING,

INC.

AND

TRI-STATE

DISPOSAL,

INC.’S

RESPONSE

TO

COMPLAINANT’S MOTION TO DISMISS AFFIRMATIVE DEFENSES

was served upon the

followingpersons by placing same in U.S. Mail, postage prepaid, this 2” Day ofSeptember, 2003.

Ms. Paula Becker Wheeler

Assistant Attorney General

Environmental Bureau

188 W. Randolph, Suite 2001

Chicago, IL

60601

Mr. Christopher Grant

Assistant Attorney General

Environmental Bureau

188

W. Randolph, Suite 2001

Chicago, IL

60601

One ofthe Attorneys for Respondent

Mark A. LaRose

Clarissa C. Grayson

LaRose & Bosco, Ltd.

Attorney No. 37346

734 N. Wells Street

Chicago,IL

60610

(312) 642-4414

Fax (312) 642-0434

---