RECEflFED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
APR
1 52004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF ILLINOIS
by
LISA
MADIGAN,
Attorney
)
PoHutj~nControl Board
General
of
the
State
of
Illinois
Complainant,
V.
)
No. PCB 03-51
DRAW
DRAPE CLEANERS,
INC
-,
an
Illinois
corporation,
AMERICAN
DRAPERY
CLEANERS
&
FLAME
PROOFERS,
INC.,
an
Illinois
corporation,
and
RICHARD
ZELL,
an
Illinois
resident,)
Respondents.
NOTICE
OF FILING
TO:
See Attached Service ‘List
PLEASE TAKE NOTICE that on April
15,
2004,
the People of
the State of Illinois filed with the Illinois Pollution Control
Board COMPLAINANT’S SECOND MOTION TO STRIKE OR DISMISS
RESPONDENT’S AFFIRMATIVE DEFENSES true and correct copies of
which are attached and hereby served upon you.
Respectfully submitted,
LISA MADIGAN
Attorney General
State of Illinois
BY:
‘..
JOEL J.
STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Floor
Chicago, Illinois
60601
(312)
814-6986
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
SERVICE LIST
Mr. Bradley Halloran,
Esq.
Illinois Pollution Control Board
1D0 W. Randolph Street,
Suite 11-500
Chicago, Illinois
60601
Ms. Maureen Wozniak, Esq.~
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O.
Box
19276
Springfield,
Illinois
62702
Ms. Michele Rocawich,
Esq.
Weissberg and Associates,
Ltd.
401 S. LaSalle Street,
Suite 403
Chicago, Illinois
60605
Mr. Richard Zell
president,
Draw Drape Cleaners
Vice President and Secretary,
American Drapery Cleaners and Flameproofers Inc.
2235 West Roscoe
Chicago, Illinois 60618
R~C~VEE~
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR
152004
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
)
STATEOF!LLNO~S
by
LISA
MADIGAN,
Attorney
)
Pollution Control
Board
General
of
the
State
of
Illinois
Complainant,
v.
)
No. PCB 03-51
DRAW
DRAPE
CLEANERS,
INC.,
an
Illinois
corporation,
AMERICAN
DRAPERY
CLEANERS
&
FLAMEPROOFERS,
INC.,
an
Illinois
corporation, and
RICHARD
ZELL,
an
Illinois
resident,)
Respondents.
COMPLAINANT’S SECOND MOTION TO STRIKE
OR DISMISS
RESPONDENT’S
AFFIRMATIVE DEFENSES
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
by
LISA
MADIGAN, Attorney General
of the State of Illinois,
pursuant to
Section 101.506 of the Board’s Procedural Regulations and
Section 2-615 of the Illinois Code of Civil Procedure,
moves for
an order striking or dismissing all five affirmative defenses of
Respondents DRAW DRAPE CLEANERS,
INC.
(“Draw Drape”), AMERICAN
DRAPERY
CLEANERS
&
FLAMEPROOFERS,
INC.
(“ADCAFI”)
and RICHARD
ZELL
(“Zell”)
.
In
support
of
its
motion,
Complainant
states
as
follows:
1.
On October
15,
2002,
Complainant,
the People of the
Stateof
Illinois,
filed an eight-count Complaint for Civil
Penalties against Respondent Draw Drape.
2.
On December 17,
2002,
Draw Drape filed an answer and
five affirmative defenses
to the Complaint
(“First Answer”)
.1
3.
On January 16,
2003,
Complainant filed a Motion to
Strike or Dismiss all Five Affirmative Defenses for the reasons
outlined below
(“First Motion to Strike”).
4.
On February 20,
2003 the Board issued an order striking
all five of Draw Drape’s affirmative defenses.
See People
v.
Draw Drape Cleaners,
Inc.,
PCB 03-51
(February 20,
2003).
Attached as Exhibit No.
1.
5.
On December 30,
2003 Complainant filed an Amended
Complaint for Civil Penalties
(“Amended Complaint”)
against Draw
Drape, ADCAFI, and Zell.
Complainant filed an Amended Notice of
Filing ~n January 20,
2004 for the Amended Complaint.
6.
On March
2,
2004 Respondents
filed an answer to the
Amended Complaint
(“Second Answer”).
7.
Respondents raised five affirmative defenses
in their
Second Answer identical to the five affirmative defenses that
Respondent Draw Drape raised in its First Answer that were struck
by the Board on February 20,
2003..
8.
Complainant incorporates the text of its First Motion
to Strike into this Second Motion to Strike or Dismiss
Respondent’s Affirmative Defenses
(“Second Motion to Strike”)
Attached as Exhibit No
2.
9.
All of the arguments
in Complainant’s First Motion to
Strike pertaining to Respondent Draw Drape also pertain to
Respondents ADCAFI and Zell in this Second Motion to Strike.
2
10.
‘Complainant requests that the Board follow its holding
in its February 20,
2003 order striking all five of Draw Drape’s
affirmative defenses with respect to the identical affirmative
defenses in the Second Answer.
CONCLUSION
11.
As Complainant stated in the First Motion to Strike,
none of Respondents’ affirmative defenses are appropriate
affirmative defenses and should be stricken or dismissed.
Complainant makes the same request to the Board in this Second
Motion to Strike.
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA
MADIGAN,
Attorney General of the
State of Illinois,
By:
_________
JOEL J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188
W. Randolph St.
-
20th Fl.
Chicago,
IL 60601
(312)
814-6986
G: \Environmefltal EnforcententVTOEL\Case T~ocwnentB\~Draw
Drape\mot-strk-aU-def-two.wDd
3
ILLiNOIS POLLUTION CONTROL BOARD
February 20, 2003
PEOPLE OF THE STATE OF
ILLiNOIS,
‘
)
)
Complainant,
)
)
v.
‘
‘
)
PCBO3-51
)
(Enforcement
—
Air)
EXHIBIT NO._L
DRAW DRAPE CLEANERS, INC.,
)
an illinois corporation,
‘
)
)
Respondent.
‘
)
0
ORDER OF THE BOARD (byM.E. Tristano):
On October 15, 2002, complainant, the People ofthe State of Illinois (complainant), filed
an
eight-count complaint against Draw Drape
Cleaners, Inc. (respondent).
The complainant
alleged that respondent violated various provisions of the Environmental Protection Act (Act),
the Board’s air pollution regulations, and its Federally Enforceable State OperatingPermit
(FESOP).
The complainant further alleged that respondent violated these provisions by emitting
volatile organic material through the uncontrolled operation ofits.equipment.
On December 17,
2002, the respondent filed an answer to
the complaint and five affirmative defenses.
On
January 16,
2003, the complainant filed a motion to strike or dismiss defendant’s affirmative
defenses.
~For’the reasons stated below, the Board strikes the respondent’s affirmative
defenses.
BACKGROUND’
Respondent operates a petroleum solvent dry cleaning operation located at 2235-2239
West Roscoe Street, Chicago, Cook County.
The eight-count complaint against the respondent
alleged various violations ofthe Act, the Board’s air pollution regulations at 35 Iii. Adm. Code
201
and 218, and federal regulations made enforceable under Section 9.1(d) oftheAct.
Briefly
the eight counts included:
Count I:
Complainant alleged that respondent emitted volatile organic material (VOM)
into the atmosphere
from the plant’s Dryer #1
(installed in
1980 and is in use) and
Dryer #2 (installed in 1996 and in use).
Count II:
Complainant
alleged violation ofthe volatile organic material emission standards
for petroleum solvent dry cleaners.
Count ifi:
Complainant alleged respondent failed to
conduct adequatetesting on Dryer #1
and Dryer #2.
2
Count P1:
Complainant alleged respondent constructed
a “new emissions source,” Dryer #2,
without a permit in 1996.
0
Count V:
Complainant alleged respondent operated an emissions
source, Dryer #2, without
apermit’since 1996.
Count VI:
Complainant alleged respondent ‘violated FESOP condition
5
which. stated: “The
Permittee shall comply with the standards,
operating practices, inspections
and
repair ofleaks, and thetesting and monitoring requirements forpetroleum solvent
drycleaners as specified in 35 Ill. Adm. Code 218.607 through 218.610.”
0
Count VII:
Complainant alleged Dryer #2 was a non-solvent recovery dryer and lacked a
cartridge filter in violation of 1982 requirements.
Count VIII:
Complainant alleged respondent failed to perform an initial flow rate test on
Dryer #2 after its
1996 installation.
‘
‘
0
‘STANDARD
In an affirmative defense, the respondent alleges “new facts or arguments that, if true,
will defeat.
..
complainant’s
claim even if all allegations in the complaint are true.”
People v.
Community Landfill Co., PCB 97-193, (Aug. 6,
1998.).
The’Code of Civil Procedure
gives
additional guidance on pleading
affirmative defenses.
Section 2-613(d) provides, in part:
The facts constituting any affirmative defense.
.‘.
and any defense which by other
affirmative matter seeks to avoid the legal effect ofor defeat the cause ofaction
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)(2002).
‘
A valid affirmative defense gives
color to
the opposing party’s claim but then asserts new matter
which defeats an apparent right.
Condon v.
American Telephone
and Telegraph Co.
210111.
App. 3d 701, 569 N.E.2d 518,
523
(2ndDist.
1991), citing The WomerAgency Inc. v.
Doyle,
121
111. App. 3d 219, 222,
459
N.E.2d 633,
635
(4th Dist.
1984).
A motion to strike an
affirmative defense admits well-pleaded facts constituting the defense, and
attacks only the legal
sufficiency ofthe facts.
“Where the well-pleaded facts ofan affirmative defense raise the
possibility that the partyasserting them willprevail, the defense
should not be stricken.”
International Insurance Co.
v. Sargent
and Lundy, 242
Iii. App. 3d 614, 630-631,
609. N.E.2d
842, 853-54 (1st Dist.
1993), citing Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847,
854, 539 N.E.2d 787,
791
(2nd Dist.
1989).
0
,
0
First Affirmative Defense
Respondent’s first
affirmative defense is that in
1994, a fire at the facility damaged or
destroyed part ofthe physical plant and equipment including a dryer identical to
Dryer # 2’.
The
3
respondent alleges it was installed in the 1960’s and, pursuant to the Act, was grandfathered in
and did not require a permit.
‘
‘
The complainant responds that in the complaint there was no
reference to respondent’s
dryer that it installed in the
1960.
The complainant argues that the issue that the respondent
raises is irrelevant to the complaint.
‘Discussion
Respondent’s first affirmative defense does not allege “new facts or arguments that, if
true, will dôfeat.
..
complainant’s
claim even if all allegation in the complaint are true.”
People v. Conimunity Landfill Co., PCB.97-193, (Aug.
6,
1998).
Even if the dryer which was
identical to Dryer #2 was damaged or destroyed, and was “grandfathered in,” and. did not require
a permit, this is irrelevant to violations alleged concerning Dryers #1 and #2.
The Board strikes
the first
affirmative defense.
‘
Second Affirmative Defense
Respondent’s second affirmative defense is that since Dryer #2 replaced an identical
dryer damaged in the.1994 fire, Dryer #2 has been mainly usedto ready drapes for pressingby
“fluffing,” and has been so used exclusively for the past year.
Respondent argues theprocess of
fluffing does not emit VOMinto the ‘environment.
Duringthe past year, Dryer#2 has, been used
only for fluffing and has not emitted VOMs into the environment.
Complainant alleges that in the complaint, Dryer #2 was installed in
1996.
Complainant
argues that respondent’s second affirmative defense does not address VOM emissions
from
Dryer #2 prior to late 2001.
Discussion
Respondent’s second
affirmative defense does not allege “new facts or arguments that, if
true, will defeat
...
complainant’s
claim even ifall allegations in the complaint are true.”
~op1e
v~
CQ~miinity
Lan~fiJiJ,.q.,
PCB 97-193, (Aug. 6,
1998).
Evenif no VOMhave been
emitted into the environment during the past year, the second affirmative defense does not
address VOM emissions from Dryer #2 prior to
late 2001.
The Board strikes respondent’s
second affirmative defense.
Respondent is free to address thesematters at hearing.
Third Affirmative Defense
Respondent’s third
affirmative defense is that Dryer
#2 was installed alter the
1994 fire
because there was no recovery dryer available atthat time in the size respondent needed for its
operation.
When a recovery dryer the proper size became available in March 2002, respondent
ordered the new dryer immediately.
The manufacturer accepted respondent’s order in
May 2002,
and delivered the new dryer (Dryer.#3) in late
Sôptember 2002.
Respondent states
Dryer #3
is being installed and respondent has obtained a permit to
operate Dryer #3.
4
The complainant responds that respondent’s claim that it may have n’eeded Dryer #2 for
its operations is irrelevantto the allegations of noncompliance with the Act, the Board’s
regulations, and the federal regulations.
In addition, complainant argues the complaint does not
address Dryer #3, so any affirmative defens,eregarding Dryer #3
is also irrelevant.
Discussion
Respondent’s third
affirmative defense doesnot allege “new facts or
arguments that, if
true, will defeat..
.
complainant’s
claim even if all allegations in the complaint are true.”
People v.
Community Landfill Co., PCB 97-193, (Aug. 6, 1998).
Whether it may have needed
Dryer#2 for its operations is
irrelevant
to the issue of
noncompliance with the Act.
The
installation ofDryer #3
is
also irrelevant on the issue ofpast noncompliance with the Act, the
Board’s regulations, and the federal regulations.
The Board strikes
respondent’s
third
affirmative defense.
Respondent is free to address these matters at hearing, as theymaybe
relevant to the Board’s consideration ofvarious factors under 33(c) and 42(h) ofthe Act.Al
5
ILCS
5/33(c),
42(h) (2002).
0
Fourth Affirmative Defense
.
‘
Respondent’s fourth affirmative defense is that it has always operated its plant below the
emissions allowed under its FESOP permit.
Respondent states it would have to emit an
additional
1,000
gallons per year to reach the emissions
allowedunder~its
FESOP.
Complainant responds that it is not clear whether respondent is referring to
emissions of
VOM because (a)
VOM is not mentioned in the fourth affirmnative defense; and ~b)reference to
VOM emissions in the FESOP are expressed in tonlyear and not in gallons/year.
Ifrespondent is
referring to
gallons of solventper year, then the fourth affirmative defense is
irrelevant as
complainant does not allege a violation ofthe solvent usage limits in the FESOP at Section 4a.
In addition, complainant alleges violations of the standards for petroleum solvent dry cleaners in
terms ofVOM per dry weight articles cleaned.
‘
Discussion
Respondent’s fourth affirmative defense does not allege “new facts or arguments that, if
true,
will defeat
...
complainant’s
claim evenif all allegations in the complaint are true.”
People v.
Community
Landfill
Co., PCB
97-193, (Aug. 6,
1998).
The complainant is correct in
that it is not
clear whether the respondent is referring
to emissions of
VOM because VOM is not
mentioned in the fourth affirmative defense and reference to VOM emissions in the FESOP are
expressed in tons/year and not in gallons/year.
The complainant does not allege a violation of
the solvent usage limits in the FBSOP at Section 4a.
Therefore, if the respondent is referring to
gallons ofsolvent per year,.then the fourth affirmative defense is irrelevant.
But, respondent
may address compliance history athearing, as it may be relevant to various factors under 33(c)
and 42(h) ofthe Act.
415 ILCS 5/33(c), 42(h) (2002).
Fifth Affirmative Defense
5
Respondent’s fifth affirmative defense is that its operatioiis are unique in that its process
commercially flame proofs drapes in a cOst effective manner that triples
the life ofthe drapes.
Respondent asserts that the State of Illinois has approved respondent’s operations for use by
schools and related entities and lists respondent’s operation as a source on the state’s website.
Complainant
argues that the unique nature ofthe respondent’s business does not excuse it
from compliance with the Act, the Board’s regulations, and the federal regulations at issue in the
complaint.
Discussion
Respondent’s fifth
affirmative
defense does not allege “new facts or arguments that, if
true, will defeat.
..
complainant’s
claim even
if all allegations in the complaint are true.”
People v. Community Landfill Co., PCB 97-193, (Aug.
6,
1998).
‘The unique nature of
respondent’s business does,not excuse it from compliance with the Act, the Board’s regulations,
and the federal regulations
at issue in the complaint.
The Board strikes this affirmative defense.
Respondent is free to address these matters
at hearing, as they may be relevant to the Board’s
consideration ofvarious factors under 33(c), and 42(h) ofthe Act.
415 ILCS
5/33(c),
42(h)
(2002).
CONCLUSION
The Board grants the motion to strike respondent’s affirmative defenses.
This case shall
proceed expeditiouslyto hearing.
IT IS SO
ORDERED.
0
I, Dorothy M. Gunn, Clerk ofthe Illinois Pollution Control Board, certify that the Board
adopted the above order on February 20, 2003, by a vote of 7-0.
Dorothy M. dunn,
Clerk
Illinois Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~
PEOPLE OF THE, STATE OF ILLINOIS,
)
~
~:~:
~
Complainant,
)
p~o~
L~i.”’~
v.
)
No.
PCB
03-51
DRAW
DRAPE
CLEANERS,
INC.,
‘
)
an Illinois corporation,
Respondent.
‘
‘
EXHIBIT NO.____
NOTICE
OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on January
1.6,
2003,
the People of
the
State
of
Illinois
filed
with
the
Illinois
Pollution
Control
Board
COMPLAINANT’S
MOTION
TO
STRIKE
OR
DISMISS
DEFENDANT’S
AFFIRMATIVE
DEFENSES,
true
and
correct
copies
of
which
are
attached and hereby served upon you.
Respectfully
submitted,
LISA
MADIGAN
‘Attorney
General
.
State of Illinois
BY:
\J~k.Tc
JOEL
3. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois
60601’
(312)
814-6986
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Mr. Bradley Halloran, Esq.
IllinoiS
Pollution
Control
‘Board
100
w.
Randolph Street,
Suite 11-500
Chicago,
Illinois
60601
Ms.
Maureen
Wozniak,
Esq.
Illinois Environmental Protection Agency
1021 North Grand Avenue
East
P.O.
3oX’19276
springfield,
Illinois
62702
Ms. Michele Rocawich,
Esq.
~eissberg and Associates,
Ltd.
‘
401 S. LaSalle Street,
Suite 403
Chicago,
Illinois 60605
BEFORE THE ILLINOIS POLLUTION ‘CONTROL BOARD
.‘,
n~
‘!
~
~
~,.jUJ
PEOPLE OF THE STAT~OF ILLINOIS,
)
‘
‘
‘
Complainant,
‘
0
)
v.
‘
)
No. PCB 03-51
(Enforcement
-
Air)
DRAW DRAPE CLEANERS,
INC.,
an Illinois corporation,
Respondent.
)
‘
•0
COMPLAINANT’S MOTION TO STRIKE OR DISMISS
DEFENDANT’S AFFIRMATIVE DEFENSES
Complainant,
PEOPLE OF THE ‘STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, pursuant to
SectionlOl.5O6 of the Board’s Procedural Regulations and’
Section 2-615
of the Illinois Code of Civil Procedure moves for
an ‘order striking or dismissing all ‘five affirmative defenses of
defendant, DRAW DRAPE CLEANERS,
INC.
(“Draw Drape”).
In support
of its motion, Complainant states as follows:
INTRODUCTION
1.
On October 15,
2002,
Complainant,
the People of the
State of Illinois,
filed an eight-count complaint alleging that
Draw
Drape
caused,
threatenedor
allowed
air pollution at its
petroleum
solvent
dry
cleaning
operation located at 2235-2239
West RoscOe Street,
Chicago,
Cook County,
Illinois
(“facility”)
by emitting volatile organic material
(“VON”)
in violation of its
Federally Enforceable State Operating Permit
(“FESOP”)
(Count I);
that Draw Drape violated standards for’petroleum solvent dry
1
clea.ners
(Count
II);
that
Draw Drape failed to conduct adequate
testing at its facility
(Count III); that Draw Drape constructed
its Dryer #2, a new emissions source, without first obtaining a
permit from the Illinois Environmental Protection Agency
(“Illinois EPA”)
(Count
IV); that Draw Drape operated and
continues to operate Dryer #2,
a new emissions source, without
a
permIt issued by Illinois EPA (Count V);
that Draw Drape violated
Condition Number
5 of its FESOP
(Count VI);
that Draw Drape
installed Dryer #2,
a non solvent-recovery dryer which did not,
have a proper cartridge filter
(Count VII); and that Draw Drape
failed to perform an initial flow rate test Dryer #2
(Count
VIII)
.
2.
On December 17,
2002,
defendants filed an answer and
five affirmative defenses to the complaint.
Complainant moves
herein to strike or dismiss all five affirmative defenses for the
reasons outlined below.
TEST FOR AFFIRMATIVE DEFENSES
3.
The test for whether a defense is affirmative and must
be pleaded by the respondent
is whether the defense gives color
to the opposing party’s claim and then asserts a 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).
In other words,
an affirmative defense
confesses or admits the cause of action alleged by the
2.
Complainant, then seeks to avoid it by asserting a new matter not
contained in the complaint and answer.
Worner Agency,
Inc.
v.
Doyle,
121 Il1.App.3d 219,
222-223,
459 N.E.2d 633, 635-636
~4th
Dist.
1984).
In addition,
the facts in an affirmative defense
must be pled with the same specificity as required by
Complainant’s pleading to establish a cause of action.
International Insurance Co.
v.
Sargent & Lundy,
242 Ill. App. 3d
614,
630,
609 N.E.2d 842,
853
(1st Dist.
1993)
FIRST AFFIRMATIVE
DEFENSE
4.
Draw Drape’s first affirmative defense
is as follows:
In 1994,
a fire at Respondent’s plant
damaged or destroyed part of the
physical ‘plant and equipment including a
Dryer identical to’Dryer #2 at issue in
this Complaint.
The dryer that was
damaged was installed .fn the
Ia0taI9E0s.
and, pursuant to the Act,’ was
“grandfathered in” and did not require a
permit.
5.
‘
In the complaint,
Complainant makes no reference to
Draw Drape’s dryer that
it installed in the 1960s.
The issue
that respondent raises in its first affirmative defense
is
irrelevant to the complaint.
SECOND AFFIRMATIVE DEFENSE
6.
Draw Drape’s second affirmative defense is as
follows:
Since Dryer *2 replaced an identical
dryer damaged in the 19.94
fire,
flrye.r #2
has been used mainly to ready drapes for,
pressing by “fluffing”.
The process of
“fluffing” does not emit VOMs into the
environment.
During
the’ last year
3
(emphasis
added),.
Dryer
#2
has
been
used
only for “fluffing” and has not emitted
VOMs into the environment.
7.
In
its
second
affirmative
defense,
Draw
Drape
claims
that
Dryer
#2
has
not
emitted
VON
during
the
last
year.
In
the
complaint, Complainant alleges that’Dryer #2 was installed in
1996.
Draw
Drape’s
second
affirmative
defense
does
not
address
VOM emissions from
Dryer
#2 prior to late 2001.
THIRD AFFIRMATIVE DEFENSE
8.
Draw Drape’s third affirmative defense is as
follows:
Respondent installed Dryer #2 after the
fire because there was no recovery’ dryer
available at that time
(i.e.,
in 1994)
in the size Respondent needed for his
operations.
When a recovery dryer the
proper size became available in March
2002,
Respondent ordered the new
recovery dryer immediately.
The
manufacturer accepted Respondent’ a order
for the new recovery dryer in May 2002
and delivered the new dryer
(Dryer #3)
in late September 2002.
Dryer #3
is
being installed at this time and
Respondent has obtained ‘a Permit
#02030079 to operate Dryer #3.
9.
Draw Drape’s claim that
it may have needed Dryer #2 for
its operations. is irrelevant to the allegations of noncompliance
with the Act,
the Board’s regulations,
and the federal
regulations in the complaint.
Furthermore,
the complaint does
not address Dryer *3,
so any affirmative defense regarding Dryer
#3
is also irrelevant.
4
FOURTH AFFIRMATIVE
DEFENSE
10.
Draw Drape’s fourth affirmative defenses
is as
follows:
Respondent has always operated its plant
below the emissions allowed under its
FESOP Permit #95100005.
Respondent’
would
have
to
emit
an
additional
1,000
gallons per year to reach the emissions
allowed under its FESOP.
11.
It is
not’ clear to Complainant that Draw Drape is
referring to emissions of VOM because a) VON is not mentioned in
the fourth affirmative defense,
and b)
references to VON
emissions in the FESOP are expressed in tons/year and not
in
gallons/year.
If respondent
is referring to gallons. of solvent
per year,
then the fourth affirmative defense is irrelevant as
Complainant does .not allege a violation of the solvent usage
limits in the FESOP at Section 4a.
12.
Furthermore, Complainant alleges violations of the
standards for petroleum solvent dry cleaners in terms of VON per
dry weight articles cleaned.
Draw Drape fails to counter that
allegation with an affirmative defense based on VON emissions per
dry weight of articles Oleaned.
FIFTH AFFIRMATIVE DEFENSE
13.
Draw Drape’s fifth affirmative defenses
is as follows:
Respondent’s. operations are unique in
that its process commercially flame
proofs drapes in a cost effe’ctive manner
that triples the life of the drapes.
The State of Illinois has approved
5
Respondent’s operations for use by’
schools and related entities,
and lists
Respondent’s operation as a source on
the State’s website.
14.
The unique nature of Draw .Drape’s business does not
excuse
it from compliance with the Act, the Board’s regulations,
and the federal regulations at issue’ in the complaint.
CONCLUSION
15.
In all of affirmative defenses, Draw Drape does not
confess or admit to the allegations in the complaint.
‘None of
the aforementioned affirmative defenses raise new matters which
bould defeat the complaint.
In addition, the fourth affirmative
defense
is not pled with the same specificity as the complaint.
16.
Thus,
none of Draw Drape’s affirmative defenses are
appropriate affirmative defenses and should be stricken or
dismissed.
,
6
PEOPLE
OF
THE
STATE
‘OF
ILLINOIS,
ex
rel.
LISA
MADIGAN,
Attorney General of the
State
of
Illinois,
By:
4=~
‘T~
~
JOEL
J.
STERNSTEIN
Assistant Attorney General
Environmental Bureau
188
W.
Randolph
St.
-
20th Fl.
Chicago,
IL 60601
(312)
814-6986
g:
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Docu~enba\Draw
a~\nt.~k.~~,ef.wp4
7
CERTIFICATE OF SERVICE
I,
JOEL
J.
STERNSTEIN,
an
Assistant
Attorney
General,
certify that on the 16th day of January,
2003,
I caused to be
served
by First Class Mail the foregoing COMPLAINANT’S MOTION TO
STRIKE OR DISMISS DEFENDANT’S AFFIRMATIVE DEFENSES to the parties
named on the attached service list,
by depositing’same
in postage
prepaid envelopes with the United States Postal Service located
at.
100 West Randolph Street,
Chicago,
Illinois 60601.
JOEL
3. STERNSTEIN
a
;
Qmmon\Env~.rcnmenta1\JOEL\Ca5ePoc~imenta\Draw
Drape\m01- ~r-afC
~
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flUng. wpd
CERTIFICATE OF SERVICE
I, JOEL J.
STERNSTEIN,
an Assistant Attorney General,
certify that on the
15th
day of April 2004,
I caused to be served
by First Class Mail the foregoing COMPLAINANT’S SECOND MOTION TO
STRIKE OR DISMISS RESPONDENT’S AFFIRMATIVE DEFENSES to the
parties named on the attached service list,
by depositing same
in postage prepaid envelopes with the United States Postal
Service located at 100 West Randolph Street,
Chicago, Illinois
60601.
~
JOEL J. STERNSTEIN
