BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
)
BY
LISA MADIGAN,
ATTORNEY GENERAL
)
OF THE
STATE
OF ILLINOIS,
)
)
COMPLAINANT,
)
)
PCB No. 02-186
RECE~VED
CLERK’S OFHCE
JAN
2~2OQ4
STATE OF ILLINOIS
Pollution Control
Board
vs.
)
)
PERFETTI VAN MELLE U.S.A. INC.,
)
A DELAWARE
CORPORATION,
)
)
(ENFORCEMENT
-
AIR)
RESPONDENT.
)
NOTICE OF FILING
PLEASE
TAKE
NOTICE that
I
have
today
filed
with
the
Office
of the
Clerk of the
Pollution
Control Board
Response
to
Complainant ‘s Motion
to
Strike or Dismiss Respondent‘s
Affirmative Defenses,
a copy of which is herewith served upon you.
Dated:
January 21, 2004
Jon S. Faletto
Attorney for Respondent
Howard & Howard Attorneys,
P.C.
One Technology Plaza, Suite 600
211
Fulton
Street
Peoria, IL
61602-1350
(309) 672-1483
g:\t-v\van melle\caa (2)\pld\not_of_filing_O1 -21-04.doc
Respectfully submitted,
PERFETTI VAN MELLE USA, INC.
By:
for Respondent
THIS FILING IS SUBMITTED
ON RECYCLED
PAPER
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD R E C E ~1
V E D
CLERK’S OFFICE
PEOPLE OF THE STATE OF
ILLINOIS,
)
~
‘~
2004
BY
LISA MADIGAN,
ATTORNEY GENERAL
)
~
L.
U
OF THE
STATE
OF ILLINOIs,
)
STATE OF
ILLINOIS
)
Pollution Control
Board
COMPLAINANT,
)
)
PCB No. 02-186
VS.
)
)
(ENFORCEMENT
-
AIR)
PERFETTI VAN MELLE U.S.A. INC.,
)
A DELAWARE CORPORATION,
)
)
RESPONDENT.
)
RESPONSE
TO COMPLAINANT’S MOTION TO
STRIKE
OR DISMISS
RESPONDENT’S AFFIRMATIVE DEFENSES
Respondent, PERFETTI VAN MELLE USA, INC., by and through its attorneys, Howard
& Howard
Attorneys, P.C.
provides its
Response
to
Complainant’s
Motion to
Strike or Dismiss
Respondent‘s Affirmative Defenses.
This
Response is
submitted
in
accordance with applicable
procedural
regulations
of
the
Illinois
Pollution
Control
Board
(the
“Board”)
and
the
Order
entered by Hearing Officer Bradley
P. Halloran on January 7, 2004.
In support ofits
Response,
Respondent states as follows:
INTRODUCTION
1.
On November 21,
2003, Respondent filed its
Answer and Affirmative Defenses
to
the Plaintiff’s
Complaint filed in this cause.
2.
On December
24, 2003,
Complainant filed its
Complainant’s Motion
to Strike or
Dismiss
Respondent’s Affirmative
Defenses
(hereafter
“Complainant’s Motion”
or “Motion
to
Strike”), pursuant to
the Board’s procedural regulations and Section 2-6 15 ofthe Illinois Code of
Civil Procedure.
3.
By
Order
entered
on
January
7,
2004,
Hearing
Officer
Bradley
P.
Halloran
provided the Respondent with additional
time to
file
its Response to
Complainant’s Motion with
said response due on or before January 21, 2004.
THIS
FILING IS SUBMITTED ON RECYCLED PAPER
LEGAL STANDARD FOR PLEADING AFFIRMATIVE DEFENSES
4.
Complainant’s Motion
correctly
points
out
that
Section
2-613(d)
of the Illinois
Code
of
Civil
Procedure,
735
ILCS
5/2-613(d)
sets
forth
the
requirements
for
pleading
Affirmative Defenses.
Illinois
case law developed under Section 2-613(d) imposes an
obligation
on the Respondent in this cause to
assert all available Affirmative Defenses, whether complete or
partial,
when filing
its
Answer
to
the
Complainant’s
Complaint.
Although
exceptions
exist
to
prevent injustice, generally a party will not be permitted to assert an Affirmative Defense if it has
not been specifically plead in its
Answer.
Athans v.
Williams,
327
Ill.
App. 3d 700,
764 N.E.2d
586
(2~’Dist.
2002).
Some
Illinois
courts
have strictly
construed the
rule
and
held
that
an
Affirmative
Defense,
which
is
not
timely pleaded, cannot be
considered
even
if the
evidence
supports
its
existence.
Vanlandingham
v.
Ivanow,
246
Ill.
App.
3d
348,
615
N.E,2d
1361
(4th
Dist.
1993).
5.
In
addition
to
the
obligation
placed
on
Respondent
to
raise
any
Affirmative
Defense
in
its
pleading,
Respondent
also
has
the
burden
of proof regarding
all
Affirmative
Defenses.
The
Complainant
is
not
required
to
put
on
any
evidence
to
counter an
Affirmative
Defense
plead
by
the
Respondent,
until
Respondent
presents
its
evidence
to
substantiate
and
prove the Affirmative Defense.
Capital Plumbing &
Heating Supply.
Inc.
v.
Vans Plumbing &
Heating, 58 Ill. App. 3d
173,
373 N.E.2d 1089
(4th
Dist.
1978).
LEGAL
STANDARD
FOR
COMPLAINANT’S
MOTION TO
STRIKE
OR DISMISS UNDER SECTION 2-615
6.
As
a
general
rule,
in
ruling
on
a
Motion
to
Strike
or Dismiss
directed
at
the
pleadings, the Court must
accept
as true all well-pleaded facts
and
all reasonable
inferences that
may be
drawn
from
those
facts.
In
addition,
the
Court
should not
grant a
Motion
to
Strike or
Dismiss unless it clearly appears that no
set of facts can be proved under
the pleadings that will
entitle the party to recover.
American National Bank
& Trust Company
v. City of Chicago,
192
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
2
Ill,
2d 274,
735
N.E.2d 551
(2000).
In addition,
the Complainant’s
Motion
to
Strike or Dismiss
Respondent’s
Affirnzative
Defenses
admits
the truth
of
all
well-pleaded
facts
constituting
the
Affirmative
Defenses
and
partial Affirmative
Defenses
raised
by
the
Respondent
and
attacks
only the legal sufficiency ofthose
facts.
International
Insurance Co.
v.
Sargent &
Lundy, 242 Ill.
App.
3d 614, 609 N.E.2d 842
(ist
Dist.
1993).
7.
As
a
general
nIle, where
a pleading
has
been dismissed
on
a
Motion
brought
pursuant
to
Section
2-615,
leave
to
amend
is
granted
as
a
matter
of course,
particularly
if
additional facts are necessary or are curable by amendment.
Sinclair v.
State Bank ofJerseyville,
226
Ill. App.
3d 909,
589 N.E. 2d
862
(4th
Dist.
1992).
That same principle applies to
a Motion
to Strike or Dismiss
an Affirmative Defense,
where it has been found that the trial
court abused
its
discretion
in
refusing
to
allow
an
amendment
to
an
Answer
to
assert
new
Affirmative
Defenses
or additional
facts.
Bituminous
Casualty
Corporation
v.
Fulkerson,
212
Ill. App.
3d
556,
571
N.E.2d 256
(5th
Dist.
1991).
8.
In the
instant
action,
Complainant
seeks
to
strike
or dismiss
the
Respondent’s
Affirmative Defenses pursuant
to
Section 2-615.
Should the Board
find
a lack of specificity or
well-pleaded facts
to
support
the Affirmative Defenses,
Respondent respectfully requests
leave
to
amend its
Affirmative Defenses.
COMPLETE AFFIRMATIVE DEFENSE
AND FIRST PARTIAL AFFIRMATIVE DEFENSE
9.
Complainant
has
challenged
the
sufficiency
of
the
Respondent’s
Affirmative
Defenses
based
on
the
equitable
doctrine
of
laches.
Complainant’s
Motion
accurately
characterizes
the equitable doctrine of laches
as
a neglect or delay
in
asserting a right or claim
which
taken together
with
the
lapse of time
and
other circumstances
causing
prejudice
to
the
adverse party, operates as a bar to the requested relief.
THIS FILING IS SUBMITTED
ON RECYCLED
PAPER
3
10.
The Complainant has filed a five count Complaint against the Respondent.
In
its
prayer
for relief for each of those
five
counts,
Complainant
demands the
imposition
of civil
penalties against the Respondent for each ofthe alleged violations of the Illinois
Environmental
Protection
Act
and
implementing
Board
regulations.
Complainant’s
prayer
for relief
further
requests the imposition ofadditional civil penalties for each violation ofthe Act for each day that
the violation continued.
11.
The Complaint
alleges
in
several
instances that
the alleged
violations
had
been
committed
and were
continuing
“since at least November
1999”
(Paragraph
7
of Count
I), and
“since 1999” (Paragraphs
20,
28 and 29
of Count II), and “since at least
1999” (Paragraph
22 of
Count V).
Clearly,
Complainant has raised in
its
Complaint the issue
of the date or dates
upon
which
the
alleged
violations
first
occurred
and
the
period
of time
the
alleged
violations
continued.
Moreover,
Complainant
seeks
to
impose
civil
penalties
based
upon
the
alleged
date(s)
of
the
violation(s)
and
additional
penalties
for
the
duration
of
each
of
the
alleged
violations.
Complainant has
made the passage of time
an
essential element of its
enforcement
action and the civil penalties it seeks from the Respondent.
12.
In
determining
the
appropriate
civil
penalty
to
be
assessed
for
statutory
or
regulatory violations,
the Illinois Environmental Protection Act
directs the Board to consider any
matters
of record
in
mitigation
or
aggravation
of a
penalty,
including
but
not
limited
to
the
factors specified in
Section 42(h).
415
ILCS
5/42(h).
Those statutory
factors to
be considered
by
the
Board
render
the
date
of
violation
and
the
duration
of any
proven
violation
to
be
extremely significant
in
evaluating
an
appropriate
civil
penalty.
Those
Section
42(h)
factors
include:
(1)
The duration and gravity of the violation;
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
4
(2)
The
presence
or
absence
of due
diligence
on
the part
of
the
violator
in attempting to
comply with the requirements ofthis Act and regulations
thereunder or to secure relieftherefrom
asprovided by this Act.
~3,)
Any economic benefits accrued by the violator because of delay
in
compliance with requirements.
415
ILCS 5/42(h)(i), (2) and
(3).
13.
Complainant
cites the decision
in
Cook
County
v.
Chicago Magnet
Wire Corp.,
152
Ill. App.
3d 726, 504 N.E.2d 904
(1st
Dist.
1987), for the general rule that a defense of laches
may
not be
asserted against a governmental authority
in
actions involving public
rights.
In that
case, the Court allowed the Defendant to
present evidence
at trial to
prove its
defense of laches,
but found no “extraordinary circumstances” and no “prejudice to Defendant brought about by the
delay.”
(Cook
County,
504
N.E.2d at page 906.)
In the
Cook County case, the Defendant was
allowed to
present
evidence
that
the
relief requested
by
the
Government
was
barred
by
the
doctrine oflaches.
Through its Motion to
Strike, the Complainant seeks to
deny Respondent the
right to present that
same type ofevidence at trial.
14.
The facts plead by the Complainant in this case are distinguishable from
the facts
in
the Cook
County case.
Complainant in the instant action seeks substantial
civil penalties
that
would
be
determined by considering the alleged
dates of violations,
the passage oftime
and the
duration
of
the
alleged
violations.
An
unreasonable
delay
by
the
Complainant
or
its
representatives in pursuing this
enforcement action against Respondent or unreasonable delay in
taking actions that
prevented Respondent from
correcting such alleged violations
would serve
to
prejudice the Respondent.
In short,
Complainant
seeks civil
penalties that
are time-dependent,
and
therefore
its
unreasonable
delay, if
any,
would
severely
prejudice the
Respondent
in
the
amount of civil
penalties assessed
by
the
Board, if
Complainant prevails
in
this
action.
As
a
result, the Board should
not
strike or dismiss
Respondent’s
Affirmative Defenses of laches and
allow it to present evidence in support ofthe defense during the trial ofthis cause.
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
5
SECOND PARTIAL AFFIRMATIVE DEFENSES
15.
Complainant,
in
its
Motion
to
Strike,
also
seeks
to
strike
or
dismiss
the
Respondent’s
second
partial
Affirmative
Defense.
Respondent’s
second
partial
Affirmative
Defense
raises
a
defense
to
liability
based
upon
the
actions or omissions
of a
third party
that
resulted in the violations
alleged in the Plaintiff’s Complaint.
16.
Contrary
to
the
arguments
raised
by
Complainant
in
its
Motion
to
Strike,
the
Complaint contains a number of alleged violations related to
construction,
not
operation, of the
Buffalo
Grove
facility.
Assuming
arguendo
that
all
of the
allegations
in
the
Complainant’s
Complaint related solely to
operation ofthe subject facility, the Respondent has not been the sole
operator of the
facility during
its
entire
existence
and
during
the time
periods
relevant
to
the
Complaint.
17.
The Respondent’s
second partial Affirmative Defense
is
in
the nature of a claim
for
contributory
negligence,
which
is
an
Affirmative
Defense
that
must
be
plead.
If a
party
wishes
to assert contributory negligence, as with
any other Affirmative Defense,
he is required to
specifically plead it.
Carlson
v.
City Construction
Company, 239
Ill.
App.
3d
211,
606
N.E.2d
400
(1st Dist.
1992) app. denied,
148 Ill. 2d 640, 610 N.E.2d 1260 (1992).
18.
The facts to
be presented during the trial ofthis
proceeding will establish that the
Respondent acquired the subject facility as an ongoing enterprise and took ownership and
control
of the facility a significant amount oftime after it had been constructed
and was being operated
by another company.
That company has not been named as a Respondent
in this proceeding.
19.
This
Respondent
cannot
be
found
liable
for
those
alleged violations
based
on
construction
of
the
facility
because
Respondent
did
not
construct
the
facility.
Similarly,
Respondent cannot be
found liable
for not
complying
with regulatory
obligations
that
must be
THIS FILING IS SUBMITTED ON RECYCLED PAPER
6
satisfied
prior
to
or
at the
time
the
facility
was constructed.
This
is
a
basic
“impossibility”
defense to the imposition of liability.
20.
Recent judicial decisions
in
other jurisdictions have recognized
that
a subsequent
owner/operator
cannot
be
held
liable
for
a
failure
by
the
previous
owner/operator
to
obtain
required construction
permits
under
Clean Air Act
permitting
programs.
New York
v.
Niagra
Mohawk Power Corporation, 263
F.Supp.
2d
650
(W.D. N.Y.
2003).
In that
case, the
State had
instituted
an
enforcement
case
against
the
current
owner/operator
of
an
electric
power plant
alleging
that
failure
to
obtain
construction
permits
before
modifying
the
facility violated
the
Clean Air Act
and related state environmental
laws.
In addressing
the State’s allegations against
the current owner/operator, the court first observed,
“In no aspect ofthis case are the distinctions
between the Clean
Air Act’s
construction
permit
and
operation
permit
programs
more
critical
than
in
the NRG
Defendant’s (current
owner/operator)
Motion to
Dismiss.”
(New
York,
263
F.Supp.
2d at 668).
21.
The
Court found that
the current owner/operator
that
had
acquired
the
existing
and
operating
power
plant
had
no
liability
for
any
of the
alleged
violations
related
to
the
construction
permitting
requirements.
“It
is
simply
counterintuitive to
construe
the
Clean Air
Act
in
such
a
way
as
to
impose
liability
for
failure
to
follow
the
Act’s
preconstruction
requirements on a person for whom compliance would have been impossible.”
(New York,
263
F.Supp.
2d
at 669).
Finding
that
the
current
owner/operator neither
owned
nor
operated
the
subject facilities at the time the modifications
allegedly occurred, the
Court held that no liability
could be
imposed.
22.
The
facts
presented
in
the
New
York
case
are
strikingly
similar
to
the
facts
alleged
in the Complaint filed in this
proceeding,
except that the
State has not named as a party
Respondent the prior owner/operator of the Buffalo Grove Facility.
Consequently, Respondent’s
THIS FILING IS SUBMITTED ON RECYCLED PAPER
7
Second
Partial
Affirmative
Defense
informs
the
Complainant
that
it
must
look
to
some
third
party for the alleged violations
that
occurred before
Respondent owned
or operated
the subject
facility.
THIRD PARTIAL AFFIRMATIVE DEFENSE
23.
As
set
forth
in the preceding discussion, the Complainant’s five
count Complaint
seeks the imposition of civil penalties
against the Respondent for alleged violations
of the Act
and
implementing
regulations.
Complainant’s prayer for relief requests
the imposition of civil
penalties
for
each
alleged
violations
and
additional
civil
penalties
for
each
day
the
alleged
violations continued.
24.
For its
third partial Affirmative Defense,
Respondent has
alleged that
the Illinois
Environmental
Protection
Agency
improperly
and
unlawfully
denied
permit
applications
submitted
by
the
Respondent
without providing
Respondent
with
the
opportunity
to
provide
additional
information
requested
by
the
application
reviewer
or
to
answer
the
reviewer’s
questions
about the
permit
applications.
Had the permits
been issued
in
accordance with
the
permit applications submitted by Respondent, permit
issuance would have served to
end the time
period during which
the Respondent was operating
without the requisite
permits,
as
alleged in
the Complaint.
In essence, the Agency’s failure to issue a “Wells letter” is directly related to the
duration ofany ofthe violations alleged in the
Complaint.
25.
The Complaint seeks civil
penalties
and injunctive relief against the Respondent
for failing
to
have
various
permits
or other
governmental authorizations.
The Complaint
also
admits that the subject facility was in
existence and operating without the alleged permits.
26.
As
noted above, for purposes of Complainant’s Motion,
all
well-pleaded facts of
the Respondent’s
Affirmative
Defenses
are deemed
admitted.
Respondent has alleged in
this
Third
Partial
Affirmative
Defense
that
the
Illinois
Environmental
Protection
Agency
has
THIS FILING IS SUBMITTED ON RECYCLED
PAPER
8
wrongfully
denied
permit
applications
submitted
by
Respondent
on
three
separate
occasions
during
the
time
periods relevant
to
this
enforcement proceeding.
The obligation imposed
upon
the
Illinois
Environmental
Protection
Agency
pursuant
to
the
Court’s
decision
in
Wells
Manufacturing Company v. Illinois
Environmental Protection Agency,
195
Ill.
App.
3d
593,
552
N.E.2d 1074 (1st Dist.
1990), are clearly at
issue in this proceeding.
27.
In
its
Motion
to
Strike,
Complainant
attempts
to
distinguish
the
obligation
imposed
upon
the
Agency
by
the
“Wells
letter”
doctrine
by
references
to
Pollution
Control
Board cases
involving
solid
waste permitting situations.
West Suburban Recycling and
Energy
Center. LP (“WSREC”) v.
Illinois EPA, PCB
95-119
and
95-125
(October 17,
1996).
28.
Contrary
to
Complainant’s
argument,
the
obligation
imposed
on
the
Illinois
Environmental
Protection
Agency
by
the
Wells
decision
is
not
limited
solely
to
solid
waste
permitting situations.
In fact, the Wells case involved the Agency’s denial of an
application
for
renewal of an
existing air operating permit.
The Court in
Wells relied upon a previous decision
by the Illinois
Supreme Court in Celotex Corporation
v.
Pollution Control
Board,
94 Ill.
2d
107,
445 N.E.2d 752 (1983), and observed in that case, “No distinction was made between an original
operating
permit
application
and
a
renewal
application.”
(552
N.E.2d at
1077.)
Clearly,
the
obligation imposed
on the Agency by the Wells decision arises
in the air permitting process and
in the case ofan original operating permit application.
29.
The decision in Wells is not
limited
to
a situation where there exists
a previously
issued
development or construction permit.
The
Court’s
finding
of a violation
of due
process
was based on
the denial
by
the Illinois
Environmental
Protection
Agency of a
“fair chance
to
protect its interests.”
The “interest” ofthe permit applicant being protected by due process is the
right
to
operate
an
existing
business
or facility.
The
Court
in
Wells
explained,
“In
effect,
it
(IEPA) denied
Wells the right to
operate
its
business because
it may
be
violating the
Act,
but
THIS FILING IS SUBMITTED
ON
RECYCLED PAPER
9
never gave it
an
opportunity to
submit information
which would
disprove the allegation.”
(552
N.E.2d at 1077.)
30.
The facts to
be presented during the trial of this proceeding
will establish
that the
Respondent
acquired
the
subject facility
as
a
going
concern and
began
operating
the
existing
candy making
equipment a significant period of time after the facility had been constructed
and
was
operating.
The
Agency’s
summary
denial
of the permit
applications
submitted
by
the
Respondent denied Respondent the opportunity to
protect its
“interest”, specifically the facility
and
candy-making business
that
it
had
acquired
and
was
operating.
To
accept Complainant’s
argument
that the only
“protected” interest
is
a pre-existing
development or construction permit
unduly
restricts
the
holding
in
Wells
and
fails
to
recognize
a
fundamental
principle
of
due
process.
CONCLUSION
31.
For the
reasons set
forth
above, the
Complainant’s Motion to
Strike
or Dismiss
Respondent’s
Affirmative Defenses
should be
denied.
In the alternative, Respondent requests
leave to amend its Affirmative Defenses to
provide additional specificity, if deemed necessary by
the Board.
Respectfully submitted,
PERFETTI
VAN
MELLE USA,
INC.
By:_____
J
S.
a1eth~\
A
ey for lrespondent
Jon
S.
Faletto
Howard & Howard Attorneys,
P.C.
211
Fulton Street,
,
Suite 600
Peoria, IL
61602-1350
(309) 672-1483
(309) 672-1568 Fax
jen;g:\t-v\van
rnelle\caa (2)\pld\resp_motion_to_strike_O1 -20-04doc
THIS FILING IS SUBMITTED ON RECYCLED
PAPER
10
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARD
PEOPLE
OF THE
STATE OF ILLINOIS,
BY
LISA MADIGAN,
ATTORNEY GENERAL
OF THE
STATE
OF ILLINOIS,
Vs.
)
)
)
)
)
)
PCB No. 02-186
)
PERFETTI VAN MELLE U.S.A.
INC.,
A DELAWARE CORPORATION,
)
(ENFORCEMENT
-
AIR)
)
)
)
)
CERTIFICATE
OF SERVICE
I, the undersigned,
hereby certify
that on this
215t
day of January,
2004,
I have
served
the
attached
Response
to
Complainant’s
Motion
to
Strike
or
Dismiss
Respondent’s
Affirmative
Defenses,
by depositing same via First Class Mailto:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 WestRandolph, Suite 11-500
Chicago, IL
60601
Joel J.
Sternstein
Assistant Attorney General
Environmental Bureau
Office of the Illinois Attorney General
188 West Randolph Street,
20th
Floor
Chicago, IL
60601
Jon S. Faletto
Howard & Howard Attorneys, P.C.
One Technology Plaza, Suite 600
211 Fulton Street
Peoria, IL
61602
(309) 672-1483
Honorable Bradley J. Halloran
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL
60601-3218
COMPLAINANT
RESPONDENT.
Jonc~~o~ omey for Respondent
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
ii
