1. THIS FILING IS SUBMITTED ON RECYCLED PAPER
      2. CERTIFICATE OF SERVICE
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR
42005
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control Board
by LISA MADIGAN, Attorney General ofthe
)
State ofIllinois,
)
)
Complainant,
)
)
PCB No. 04-207
v.
)
(Enforcement)
)
EDWARD PRUIM, an individual, and
)
ROBERT PRUIM, an individual,
)
)
Respondents.
)
NOTICE OF FILING
TO:
Ms. Dorothy Gunn, Clerk
Mr. Christopher Grant
Illinois Pollution ControlBoard
Assistant Attorney General
James R. Thompson Center
Environmental Bureau
100 W. Randolph Street,
11-500
188 W. Randolph, 20th Floor
Chicago, IL
60601
Chicago, IL
60601
Mr. BradleyHalloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, IL
60601
PLEASE TAKE NOTICE that on March 4,2005, we filed with the Clerk ofthe Illinois
Pollution Control Board an original and eleven copies ofRESPONDENTS’
RESPONSE
TO
COMPLAINANT’S MOTION TO
STRIKE AFFIRMATIVE DEFENSES, a copy ofwhich
is attached and herewith served upon you.
Attorney forRespondent
MarkA. LaRose
Clarissa C. Grayson
Attorney No. 37346
LaRose & Bosco, Ltd.
200 N. LaSalle Street, Suite 28.10
Chicago, IL 60601
(312) 642-4414
Fax (312) 642-0434
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION
CONTROL
BOAR1~,4Ar,
2005
PEOPLE OF THE STATE OF ILLINOIS,
)
p~j~TE
OF
ILLINOIS
)
Il
rol
Board
Complainant,
)
)
vs.
)
PCB No. 04-207
)
(Enforcement)
EDWARD PRUIM, an individual, and
)
ROBERT PRUIM, an individual,
)
)
Respondents.
)
RESPONDENTS’ RESPONSE TO COMPLAINANT’S MOTION TO
STRIKE
RESPONDENTS’ SECOND AFFIRMATIVE DEFENSE
This mattercoming before the illinois Pollution ControlBoard
in Respondents’ Response to
Complainant’s Motion to
Strike
Respondents’
Second Affirmative Defense, Edward Pruim
and
Robert Pruim, Respondents, by and through their attorneys, LaRose & Bosco, Ltd., and in support
thereof, state as follows:
1.
Because Complainant has replied to
Respondents’ first affirmative defense,
Respondents’
present
response,
therefore,
will
only
address
Complainant’s
Motion
to
Strike
Respondent’s second affirmative defense.
2.
Respondents’
second affirmative defense states as follows:
“This
Complaint
is barred because Complainant
has failed
to state a claim for personal
liability under the Act by failing to allege
sufficient facts establishing that Respondent had
personal involvement or active participation in the acts resulting in liability.
Complainant
has
merely
set
forth
allegations
of Respondent’s
involvement
and
participation in
the
management of the corporation, which are insufficientto establish personal liability under
the Act.”
3.
Complainant
argues that Respondents’ second affirmative defense is improper and
legallyinsufficient because it attacks the legal sufficiencyofthe complaint and is nothing morethan
1
a restatement of its Motion to Dismiss, which has already been denied by the Board.
4.
Complainant’s
argument, however, misses
the mark.
The affirmative
defense of
failure to state a cause ofaction assumes ~
forthe purpose ofthe defense that the allegations are
true but are legallyinsufficient. Stratman v.
Brent, 291
Ill.App.3d 123,
129,
683 N.E.2d
951,
955
(1997);
735 ILCS
5/2-619(a)(9).
The defense of failure to state a cause ofaction maybe raised at
any time by motion, answer, or otherwise.
735 ILCS
5/2-619(d).
5.
Alternatively, if Complainant’s Motion to Strike Respondents’ Second Affirmative
Defense is granted by the Board, Respondents herebyrequest that the issues contained in its second
affirmative
defense be
preserved and that Respondents be
permitted to
present evidence at trial
concerning the second affirmative defense.
WHEREFORE, based on the foregoing, theparties respectfullyrequestthat theBoard deny
Complainant’s Motion to Strike Respondent’s Second Affirmative Defense and allow Respondents
to present evidence athearing in support thereof~
oralternatively, that the Board orderthat the issues
contained in
Respondents’
Second Affirmative
Defense
be
preserved and
that Respondents be
permitted to present evidence in support thereof at hearing.
s
tfully Submitted,
~LL2~c~
~
One ofRespondents’
Attorneys
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd.
200 North LaSalle Street, Suite 2810
Chicago IL
60601
(312) 642-4414
2
CERTIFICATE OF SERVICE
The undersigned, an
attorney,
on
oath states that
she caused to
be
served a copy of the
foregoing
RESPONDENTS’
RESPONSE
TO
COMPLAINANT’S
MOTION
TO
STRIKE
RESPONDENTS’ SECOND
AFFIRMATIVE DEFENSE
to
the following parties of record,
by hand delivery this
4th
day ofMarch, 2005:
Mr. Christopher Grant
Environmental Bureau
Assistant Attorney General
188 WestRandolph Street, 20t~~
Floor
Chicago, 1L60601
Ms. Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph Street, 11-500
Chicago, IL
60601
Mark A. LaRose
Clarissa C.
Grayson
Attorney No. 37346
LaRose & Bosco, Ltd.
200 N. LaSalle Street
Suite 2810
Chicago, IL 60601
(312) 642-4414
Mr. Bradley Halloran
Hearing Officer
Illinois Pollution ControlBoard
100 W. Randolph Street, Suite 11-500
Chicago, IL
60601
Attorney forRespondents
‘I
THIS FILING IS
SUBMITTED ON RECYCLED PAPER

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