RECE~IVED
CT.FRK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC24 2003
p~oPi~ OF
THE
STATE
OF
ILLINOIS,
by
LISA
MADIGAN,
Attorney
)
S~DVfEOF
ILLkNOIS
General
of the State of Illinois
Pollution Control Board
Complainant,
No. PCE 02-186
v.
)
Enforcement
-
Air
VAN
MELLE U.S.A.,
INC.,
an Illinois corporation,
Respondents.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on December 24,
2003 we filed with
the pollution Control Board the following
Complainant’s Motion to
Strike or Dismiss Respondent’s Affirmative Defenses,
a true and
correct copy of which
is 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
Dated: December 24,
2003
THIS
DOCU1~.1ENTSUBMITTED ON RECYCLED PAPER
SERVICE LIST
John Faletto,
Esq.
Howard & Howard
211 Fulton,
Suite 600
Peoria,
IL 61602-1350
Maureen Wozniak,
Esq.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL
62794-9276
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDREC~.J~V~D
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
)
DEC
2
4
2003
General
of the State of Illinois
)
STATEOFILLINOIS
Complainant,
Pollution
Control Board
No. PCB 02-186
v.
)
Enforcement
-
Air
VAN
MELLE U.S.A.,
INC.,
an Illinois corporation,
Respondent.
)
COMPLAINANT’S 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 of the affirmative defenses
of Respondent
VAN
MELLE U.S.A.,
INC.
(“Van Melle”).
In support
of its motion,
Complainant states as follows:
INTRODUCTION
1.
On April
23,
2002 Complainant filed a five-count
complaint against Respondent Van Melle alleging violations
of the
Illinois Environmental Protection Act
(“Act”)
and Pollution
Control Board regulations concerning Respondent’s candy
manufacturing facility located at 152 North Hastings Lane,
Buffalo Grove,
Lake County,
Illinois.
2.
Specifically,
Complainant alleged that Respondent
1
operated
a
source
emitting
volatile
organic
material
(“VOM”)
without
a
permit
(Count
I),
failed
to
timely
submit
a
Clean
Air
Act Permit Program (“CAAPP”)
application to the Illinois
Environmental
Protection
Agency
(“Illinois
EPA”)
(Count
II),
failed to timely submit an Emission Reduction Market System
application
to
Illinois
EPA
(Count
III),
caused
or
allowed
air
pollution in violation of New Source Review requirements
(Count
IV),
and failed to reduce uncontrolled VOM emissions
(Count V).
3.
On
November
21,
2003,
Respondent
filed
its
answer
and
affirmative defenses to the complaint.
Complainant moves herein
to strike or dismiss the affirmative defenses for the reasons
outlined below.
LEGAL STANDARD FOR AFFIRMATIVE DEFENSES
4.
Section 2-615 of the Illinois Code of Civil
Procedure,
735 ILCS 5/2-615
(2002)
,
provides in pertinent part:
“All
objections to pleadings shall be raised by motion.
The motion
shall point out specifically the defects complained of and shall
ask for appropriate relief,
such as: that a pleading or portion
thereof be stricken because substantially insufficient in law
5.
Section 2-613(d)
of the Illinois Code of Civil
procedure,
735 ILCS 5/2-613 (d) (2002),
sets forth the requirements
for all Affirmative Defenses.
It provides,
in pertinent part:
2
The facts constituting any affirmative
defense, such as payment,
release,
satisfaction,
discharge,
license,
fraud,
duress,
estoppel,
laches,
statute of frauds,
illegality,
that the negligence of a
complaining party contributed in whole or in
part to the injury of which he complains,
that an instrument or transaction is either
void or voidable in point of law,
or cannot
be recovered upon by reason of any statute or
by reason of nondelivery, want or failure of
consideration in whole or in part,
and any
defense which by other affirmative matter
seeks toavoid the legal effect of or defeat
the cause of action set forth in the
complaint,
counterclaim, third party
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.
(emphasis
added).
6.
An affirmative defense is a “matter asserted by
(respondent)
which,
assuming the complaint to be true,
constitutes a defense to it.”
BLACK’S LAW DICTIONARY
(6th ed.
1990)
.
In other words,
an affirmative defense must give color to
the opposing party’s claim and then assert a new matter by which
the apparent right
is defeated.
Ferris Elevator Company,
Inc.
v.
I\Jeffco,
Inc.,
285 Ill.App.3d 350,
354,
674 N.E.2d 449,
452
(3rd
Dist.
1996)
.
An affirmative defense confesses or admits the
cause of action alleged by the Complainant,
then seeks to avoid
it by asserting a new matter not contained in the complaint and
answer.
Worner Agency,
Inc.
v.
Doyle,
121 Ill.
App.
3d 219,
222-
223, 459 N.E..2d 633,
635-636
(4th Dist.
1984)
.
In addition,
the
3
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)
COMPLETE AFFIRMATIVE DEFENSE
AND
FIRST
PARTIAL AFFIRMATIVE DEFENSE
7.
Respondent’s first complete affirmative defense and
first partial affirmative defense is as follows:
Respondent alleges that Complainants’
(sic)
claims are barred by the equitable doctrine
of laches.
8.
Laches assumes that due to passage of time,
Respondent
is prejudiced and,
as a result,
the penalties that Complainant
seeks are prohibited.
BLACK’S LAW DICTIONARY 875
(6th ed.
1990).
Respondent provides no facts to support this defense.
9.
Moreover,
it is well settled in the law that laches may
not be invoked against a governmental body which is attempting to
perform its governmental function,
or in actions involving public
rights.
Laches should only be invoked in “extraordinary
circumstances”.
Cook County v. Chicago Magnet Wire Corp.,
152
Ill. App.3d 726,
727-28,
504 N.E.2d 904,
905
(1st Dist.
1987)
In Pielet Bros.
Trading Inc. v.
Illinois Pollution Control Board,
110
Ill.
App.
3d 752,
758,
442 N.E.
2d 1374,
1379
(5th Dist.
1982),
the Court found that the public has a right to a healthy
and safe environment.
This is also consistent with language
found in Article XI
of the Illinois Constitution and Section 2(b)
4
o~the Act,
415 ILCS 5/2(b) (2002).
There are no extraordinary
circumstances in this matter, and Complainant
is performing its
governmental function of protecting the environment.
Respondent
cannot sustain an affirmative defense of laches,
and this defense
must be stricken.
10.
In addition,
the laches affirmative defense does not
give color to any of the allegations
in the complaint.
It does
not confess or admit the cause of action alleged in the
complainant.
Furthermore,
it does not assert new matters which
defeat any of the allegations in the complaint.
SECOND PARTIAL AFFIRMATIVE
DEFENSE
11.
Respondent’s second partial affirmative defense is as
follows:
Respondent alleges that
if there were actions
or conditions giving rise to one or more of
the Complainant’s claims or causes of action,
those actions were taken or conditions
created by the negligence or intentional
conduct of some third person,
firm or
corporation, their agents,
servants or
employees over whom Respondent had no control
and for whose negligence or intentional
conduct Respondent is not and was not
responsible.
12.
Respondent’s second partial affirmative defense should
also fail.
Although the second partial affirmative defense
admits the underlying cause of action,
it does not avoid or
defeat Respondent’s liability for the violations in the
Complaint.
As operator of the candy manufacturing facility,
5
Respondent
is responsible for all of the violations
in the
complaint.
Respondent does not name any other owners or
operators of the facility in the second partial affirmative
defense.
13.
The second partial affirmative defense should also fail
because
it is not as specific as the complaint.
Complainant
named Respondent Van Melle as the party responsible for the
alleged violations in the Complaint.
In its second partial
affirmative defense, Respondent fails to name another specific
entity that is responsible for the violations in the complaint.
Placing the blame on “some third person, firm or corporation.
.
.“
is extremely non-specific and could implicate any person as being
responsible for the violations.
THIRD PARTIAL AFFIRMATIVE DEFENSE
14.
Respondents third partial affirmative defense
is as
follows:
For a third defense, Respondent alleges that
the Illinois Environmental Protection Agency,
acting as an administrative agency of the
State of Illinois, failed to comply with the
requirements of the Illinois Environmental
Protection Act,
415 ILCS 5/1,
et
seq.,
in
that on three occasions,
specifically Nay 7,
2002,
October
13,
2000,
and June 30,
2000,
the Illinois Environmental Protection Agency
improperly and unlawfully denied permit
applications submitted by Respondent for its
Buffalo Grove,
Illinois facility.
The
Agency’s failure to contact respondent prior
to denying the permit applications effected a
violation of the Petitioner’s due process
rights.
Board and Illinois Court decisions
6
on this issue are clear that the Agency is
obligated to issue a “Wells Letter” under the
circumstances
that
existed.
See
Wells
Manufacturing vs.
IEPA,
195 Ill.App.3d 593,
552 N.E.2d 1074
(1st Dist.
1990)
; West
Suburban Recycling and Energy Center,
LP,
(October 17,
1996)
,
PCB 95-119 and 95-125
The permit application denials were made in
violation of the obligation imposed by
Section 39(a)
of the Act to identify each
section of the Act or regulations that would
be violated if the permit were to issue with
sufficient information for the Petitioner to
determine the bases for the Agency’s
determination.
See
Grigolet vs.
IEPA
(November 29,
1990)
POB 89-184.
The permit
applications contained all of the information
required by 35 Ill. Adm. Code §201.152,
§201.157 and the applicable provisions of the
Act and therefore it was a violation of the
Act and the implementing regulations for the
agency to deny the Respondent’s permit
applications.
It was a violation of the Act
and the implementing regulations for the
agency to consider “historical application
data”
or some other unidentified facts in its
decisions to deny the permit applications
submitted by Respondent particularly when the
agency failed to ask for any additional
information or questions concerning the facts
which were outside the scope of the permit
application under review.
15.
Respondent’s third partial affirmative defense is not a
proper affirmative defense but instead part of its legal strategy
in a related permit appeal now pending before the Board
(see
Perfetti Van Melle USA,
Inc.
v.
Illinois EPA,
PCB 02-215)
16.
Even if the Board were to consider the third partial
affirmative defense as plausible in this enforcement action,
that
defense must fail because it
is legally insufficient.
Respondent
provides only part of the “Wells Letter” doctrine.
The Board
7
limits the requirement for Wells Letters
in this manner:
WSREC filed an application for a solid waste
management development permit with the
Agency.
WSREC did not hold a prior solid
waste management development permit,
so this
was not an application for an operating
permit where WSREC already had the
developmental permit, nor a renewal permit
application.
Therefore,
within the meaning
of Nartell or Wells, WSREC did not hold any
property interest in the solid waste
management development permit which would
assure the accompanying heightened due
process rights.
(footnote omitted) WSREC
merely held an expectation to a property
interest in the solid waste management
development permit.
.
Even though the Board’believes that in the
interest of judicial economy the Wells
Letters,
or some other pre-denial
notification,
should have been sent to WSREC
prior to the land application denial, we do
not find that such omission results
in the
violation of any due process rights so as to
require the permit to issue by operation of
law.
From another perspective, the Board notes
that any applicant who wishes to obtain a
permit personally bears the burden of
submitting a meritorious application.
To
affirmatively require that the Agency seek
from the applicant any and all information
necessary to make an initial application
successful would be tantamount to shifting
the applicant’s burden to the Agency;
this
the Board will not do.
West Suburban
Recycling and Energy Center
(“WSREC”)
v.
Illinois
EPA,
PCB 95-119 and 95-125
(October
17,
1996)
17.
The situation in WSREC is analogous to the situation
herein.
Respondent
Van Melle substantially increased its
emissions and in turn was required to apply for its first CAAPP
8
permit.
Van Mel~ledid not previously have a CAAPP permit and
thus had no existing property interest in the CA~PPpermit.
The
burden was on Van Nelle,
not Illinois EPA,
to submit the CAAPP
permit application.
As a result,
Illinois EPA was not legally
obligated to send a Wells Letter prior to denying Van Melle’s
CAAPP permit application.
Illinois EPA did not deny due process
to Van Melle.
18.
Furthermore,
in all of the permit application denial
letters that Illinois EPA sent to Respondent Van Melle,
Illinois
EPA clearly explained which Sections of the Act might be violated
it the requested CAAPP permit were issued.
In addition,
Illinois
EPA also identified the information that Van Melle failed to
provide in its permit application.
CONCLUSION
19.
For the reasons set forth above,
all of Respondent’s
affirmative defenses should be stricken or dismissed.
Respectfully submitted,
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
9
CERTIFICATE OF SERVICE
I,
JOEL
J. STERNSTEIN,
an Assistant Attorney General,
certify that on the 24th day of December 2003,
I caused to be
served by First Class Mail the foregoing Complainant’s
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.
~i~e
~r~-
JOEL J.
STERNSTEIN