BEFORE THE ILL~OISPOLLUTION CONTROL BOARi
JUN• -31997
STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
LOLWTION
CONTROL BOARD
I
)
Complainant,
)
)
)
MIDWEST GRAIN PRODUCTS
OF ILLINOIS, INC.,
an illinois corporation,
)
)
Respondent.
)
NOTICE OF
FILING
To:
Dorothy M.
Gunn, Clerk
Pollution Control Board
State ofIllinois Center
100 West Randolph
Suite
11-500
Chicago, Illinois
60601
served upon you.
Jane E. McBride, Esq.
Assistant Attorney General
500 South Second
Street
Springfield, IL
62706
HUSCH
&
EPPENBERGER
Charles E. Me
11 #06211606
Amy L. Wachs,
Pro hac vice
Tracy S. Menges #06231131
100 NorthBroadway,
Suite
1300
St.
Louis, MO
63102
(314) 421-4800
THIS
FILING
IS SUBMITTED ON RECYCLED PAPER
vs.
RECEIVED
CLERK’S OFFICE
No. 97-179
(Enforcement)
)
)
PLEASE
TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board Respondent Midwest Grain P~roductsofIllinois, Inc.’s Response to
Complainant’s Motion to
Strike Respondent’s Affirmative Defenses, copies ofwhich are herewith
Dated this 2nd day ofJune,
1997.
STL—569345. 01
RECEIVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
JUN ~-31997
-
STATE OF ILLINOIS
POLLUTION CONTROL BOARD
PEOPLE OF THE
STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
)
No. 97-179
)
MIDWEST
GRAIN
PRODUCTS
)
(Enforcement)
OF ILLINOIS, INC.,
an illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S MOTION TO
STRIKE
RESPONDENT’S
AFFIRMATiVE DEFENSES
Respondent Midwest Grain Products ofIllinois,
Inc.
(“Midwest Grain”) submits this
Response to Complainant’s Motion to Strike Respondent’s Affirmative Defenses.
1.
Paragraph A.
Complainant argues that Midwest Grain’s first affirmative defense,
set forth in Paragraph
A ofits Answer, states a legal conclusion and should therefore be stricken.
This argument is
incorrect; Paragraph A states not only a legal conclusion, but the fact on which that legal
conclusion is based: “Midwest Grain discontinued use of its fluidized bed coal boiler in
1994.”
Clearly, whether and whenMidwest Grain discontinued use ofits coal boiler is a fact.
Midwest Grain will offer evidence as to the decrease in emissiäns resulting from the shut-down of
the boiler, and evidence comparing its
emissions to the threshold for applicability ofthe~PSD
regulations.
The allegations in Paragraph A thus bear on whether Midwest Grain was a major
stationary source subject to
PSD regulations under the Clean Air Act,
and directly controvert the
allegations set
forth in paragraphs 22 to 27 ofCount I.
Ifthe Board finds that Midwest Grain was
STL—56~830.04
not a major stationary source subject to PSD regulations,
Complainant’s cause ofaction in Count
I will be defeated.
Thus, the fact that Midwest Grain
discontinued use ofits fluidized
bed boiler
in
1994 constitutes an affirmative defense that may defeat the cause ofaction in the
Complaint.
Midwest Grain should therefore be allowed to plead this fact in its Answer.
The Illinois Code ofCivil Procedure, which Complainant cites in its motion,
supports
Midwest Grain’s right to plead facts which will defeat Complainant’s cause ofaction, even if such
facts do not constitute a traditional affirmative defense.
-
The facts constituting any affirmative defense
...
and
any defense which
by other
affirmative matters 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)(Smith-Hurd
1993)(emphasis added).
A true affirmative defense-such as the
statute oflimitations- defeats a cause ofaction even ifthe claimant’s prima facie case is
incontroverted.
But the rule is broader; it permits pleading of any matters which may defeat,the
cause ofaction.
Midwest Grain’s position that it ceased to be a major source subject to PSD
regulations at the time use ofits
coal-fired boilerwas discontinued is not
a traditional affirmative
defense; rather, it really relates to Complainant’s ability (or lack thereof) to prove a prima facie
case ofliability.
However, it is a fact which, iftrue, will defeat Complainant’s cause ofaction.
Thus,
to avoid
surprising Complainant at the hearing ofthis matter, Midwest Grain has chosen to
raise this ground in its Answer, as it is required to do under the Rule cited above.
Midwest Grain
should
therefore be allowed to plead Paragraph A in its Answer.
—2—
STL—568830. 04
should be
determined at the hearing ofthis matter upon a fill record, not at the pleading stage.
See Raprager v.
Allstate Ins.
Co.,
183
Ill. App.
3d 847, 539 N.E.2d 787, 792 (1989)(”A motion
to strike an affirmative defense admits
all well-pleaded facts constituting the defense together with
all reasonable inf&ences which may be drawn therefrom.”)(internal citations omitted.) Midwest
Grain should therefore be allowed to plead this fact as an affirmative defense.
3.
Paragraphs
B and D.
-
Midwest Grain should be allowed to plead in Paragraphs B
‘and D, facts in support of
penalty mitigation.
In determining the appropriate penalty, if any,
to impose upon a respondent,
the Board is authorized to
consider any matters ofrecord in mitigation or aggravation of a
penalty, including but not limited
to the following factors:
(1) the duration and gravity of the violation;
(2) the presence or absence of due diligence on the part ofthe violator in attempting to
comply with requirements ofthis Act and regulations thereunder or to secure relief
therefrom as provided by the Act;
(3) any economic benefits accrued by the violator because ofdelay in
compliance with the
requirements;
‘
‘
(4) the amount ofmonetary penalty which will serve to deter further violations by the
violator and to otherwise aid in enhancing voluntary compliance with this Act by the
violator and other persons similarly subject to the Act; and
(5)
the number, proximity in time,
and gravity ofpreviously adjudicated violations ofthis
Act by the violator.
415
ILCS 5/42 (Smith-Hurd
Supp.
1997).
In addition to defeating some or all ofComplainant’s
claims, the facts alleged in Paragraphs B and
D ar~
also relevant to penalty mitigation.
Paragraph B ofMidwest Grain’s Answer, states:
Midwest Grain ‘acted in good faith
...
Midwest Grain has worked steadily to
improve upon the emission control system.
Midwest Grain has been in frequent
‘contact with IEPA regarding its
difficulties with the system.
These facts
clearly bear upon Midwest Grain’s due diligence in attempting to comply with
—4—
STL—568830.04
2.
Paragraph
C.
Midwest
Grain maintains that its
agreement with IEPA to purchase and install additional
emission control equipment, at
substantial expense, is a compliance commitment agreement within
the meaning of415 LCS
5/31
(Smith-Hurd Supp
1997).
Complainant argues that this section
applies prospectively only; however, Complainant cites no law supporting this proposition.
On
the contrary, if an amendatory act merely affects the remedy or law ofprocedure, all rights of
action will be enforceable under the new procedure even if they accrued prior to the change in the
law.
See e.g.
Levy
v. McKiel,
185
Ill.
App.
3d 240,
541 N.E.2d 242, 244 (1989)(amendment to
Hospital Licensing Act precluding recovery of civil
damages was remedialin
nature; therefore,
amendment applied retroactively);
see also Niven v.
Siqueira,
109 Ill. 2d 357, 487 N.E.2d 937,
941
(1
985)(”A
new law which affects’only procedure generally applies to litigation pending when
the new law takes effect.
The term ‘procedure,’ in this context, has a much broader meaning than
solely pleading or practice, and generally can be said to
include rules of discovery, evidence, and
privilege.”)(internal citations omitted);
Sostak v.
Sostak,
113 Ill. App. 3d
954,
447 N.E.2d 1345,
1349 (1983)(“Where an amendment is remedial in nature, all rights ‘of action thereunder will be
‘enforceable under the new procedure without regard to whether they accrued before or after such
change oflaw or whether the suit has been instituted or not, unless there is a savings clause as to
existing litigation.”)
Complainant argues that even if this law applies retrospectively, nothing exists which
might be
construed as a Compliance Commitment Agreement.
Whether ornot Midwest Grain
has entered into a Compliance Commitment Agreement is a question offact.
Midwest Grain has
raised the fact that it entered into such an agreement as a fact constituting a defense.
This fact
—3--
STL—568830.04
‘
requirements ofthe Illinois Environmental Protection Act.
Paragraph D ofthe Answer states:
Midwest Grain has been in frequent contact with EPA
...
At no time has Midwest
Grain disregarded the air permit regulations and it has worked steadily with EPA
to remedy the ‘difficulties it has had as a result ofthe unexpected
difficult
engineering for its emissions.
Likewise, these facts,also bear upon Midwest Grain’s due diligence in
attempting to comply with
the Act,
and thus upon penalty mitigation.
Even if these factual circumstances do
not establish
complete defenses to liability, Midwest Grain should be allowed to plead them in its Answer
because oftheir relevance to the penalty issues.
As discussed above, Midwest Grain should be allowed to plead any grounds which will
allow it to avoid, in whole or in part
(i.e.
in mitigation),
Complainant’s cause ofaction, and it is
required to plead any grounds which might take Complainant by
surprise.
As facts relevant to
penalty mitigation will help Midwest Grain to avoid the full amount ofthe penalty requested by
Complainant,
and they might take Complainant by surprise if not plead in the Answer, Midwest
Grain should be allowed to plead them in its Answer.
‘
WHEREFORE, Midwest Grain, by and through its
attorneys, Husch & Eppenberger,
•
respectfully requests an order denying Complainant’s Motion to Strike Respondent’s Affirmative
Defenses, and granting such other relief as may be appropriate.
Respectfully submitted,
HIJSCH and EPPENBERGER
Charles E. Merrill #06211606
•
Amy L. Wachs,
Pro hac vice
Tracy S. Menges #06231131
100 N. Broadway,
Suite 1300
•
‘
•.
St. Louis, Missouri
63102
(314)421-4800
•
—5—
STL—568830. 04
CERTIFICATE OF SERVICE
I,’,
I hereby
certify that I did
on the 2~ayofJune, 1997,
send a true and accurate copy of
the foregoing instrument by first class mail, postage prepaid to Complainant’s attorney:
Jane E. McBride
‘
‘
Assistant Attorney General
Environmental Bureau
•
500
South Second Street
,
Springfield,
IL
62706
and the originals and ten copies ofthe foregoing instrument by U.S.
Mail, Express Mail Service,
postage prepaid to:
‘Dorothy Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
Suite 11-500
100 West Randolph
Chicago, IL 60601
THIS FILING IS SUBMITTED ON RECYCLED PAPER
—6—
STL—568830. 04
~ii
~T
~
~
Husch
& Eppenberger
~
~
100
N. Broadway
Suite
1300
Attorneys
and
Counselors
at
Law
St.
Louis,
Missouri
63102
fax:
314-421-0239
314-421-4800
IRECEIVEC
I
CLERK’S OFFICE
June2,
1997
j
JUN
~319g7
VIA
US. Mail -ExpressMail Service
~
BOARD
Ms.
Dorothy M.
Gunn, Clerk
Pollution Control Board
State ofIllinois Center
100 West Randolph
Suite 11-500
Chicago, IL
60601
Re:
People of the State ofillinois v. Midwest Grain of Illinois, Inc.
PCB No. 97-179
Dear Ms. Gunn:
Enclosed, for filing in the above-referenced matter, are an original
and ten copies of
Notice ofFiling and Respondent Midwest Grain Products ofIllinois’s Response to Complainant’s
Motion to
Strike Respondent’s Affirmative Defenses.
Please file stamp the extracopy provided and return in the enclosed, self-addressed,
stamped envelope.
Thank you for your assistance in this matter.
Very truly yours,
Tracy S. Menges
/ma
Ends.
STL—599363.01
St
Louis
Kansas City
Jefferson
City
Springfield
Overland
Park
Peoria
