)
)
)
)
NOTICE
OF FILING AND PROOF OF SERVICE
CLERK’S
OFFICE
JUN
‘~
2003
STATE OF ILLINOIS
Pollutj0~Control Board
To:
Jane E. McBride (via FedEx)
Environmental Bureau
Attorney General’s Office
500 S.
Second St.
Springfield,
IL
62706
W.C.
Blanton
(viaU.S.
mail)
Blackwell Sanders Peper Martin LLP
Two Pershing Square
2300 Main St., Suite 1000
Kansas City, MO 64108
David Joest (via U.S. mail)
Peabody Coal Company
1951 Barrett Court
P.O. Box
1990
Henderson, KY
42419-1990
Bradley Halloran, Hearing Officer (via FedEx)
Illinois Pollution Control
Board
James R. Thompson
Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
The undersigned certifies that
an
original
and
nine
copies of Respondent’s
Renewed
Motion
for
Leave
to
File
Surreply,
Respondent’s
Tender
of
Surreply,
and
the
tendered
Respondent’s
Surreply
In
Opposition
To
State’s Motion To
Strike Respondent’s
Affirmative
Defenses,
were
served
upon
the
Clerk
of the
Illinois
Pollution
Control
Board
via
Federal
Express, and one
copy was served upon the above-identified individuals as indicated above
by
enclosing
the
same
in
envelopes
properly
addressed,
with
postage
fully prepaj~~4~:I
by
depositing said envelopes in a
Federal Express or U.S. Post Office mail box, on the
~
day
of June, 2003.
Step~3in
F. He~Iin~er
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE
OF ILLINOIS,
)
Complainant,
)
v.
)
PCB 99-134
PEABODY COAL COMPANY, a Delaware
corporation,
Respondent.
Hedinger Law Office
2601
S. Fifth St.
Springfield, IL 62703
(217)
523-2753
phone
(217) 523-4366 fax
THIS FILING IS SUBMITfED ON RECYCLED PAPER
KC-1O92145-1~
2597/3
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFT”r
PEOPLE OF THE STATE OF ILLINOIS,
)
JUN
4
20o~
)
STATE
OFIWN~
Complainant,
)
POllUtfOfl
Contro/ Boarjj
v.
)
PCB
99-134
)
PEABODY COAL COMPANY,
a Delaware
)
corporation,
)
)
Respondent.
)
RESPONDENT’S RENEWED MOTION FOR LEAVE TO FILE
SURREPLY
Respondent, Peabody Coal Company (“PCC”), hereby respectfully renews its motion for
leave
to file a surreply
in opposition to
Complainant’s Motion To
Strike Affirmative Defenses
filed on or about February 3, 2003
(“State’s Motion”), on the grounds (1) that it appears from the
terms of Hearing Officer Order dated May 20, 2003 that PCC’s initial motion in this
regard was
deficient in its effort to
clearly articulate why it is appropriate
—
and in no way an extraordinary
proposition
—
for PCC to file a
surreply
directed to
the State’s Motion;
(2) that PCC’s
initial
motion
in this regard also
apparently was deficient in its effort
to articulate the prejudice to PCC
that
will result if
it
is
not granted leave
to
file a surreply
directed
to the
State’s Motion;
and
(3) that denying PCC leave to file a surreply directed to
the State’s Motion
denies PCC the even
handed
treatment of the parties with
respect to
procedural
matters
to
which
every litigant
in
proceedings before this Board is entitled, as more fully discussed below.
First,
the parties’ handling of the State’s Motion has proceeded in an unusual
manner to
some
extent.
PCC believes
that
all
of its
affirmative
defenses as set forth
in its Answer
to the
State’s Third Amended Complaint (“Complaint”) pled sufficient
facts with sufficient specificity
KC-1O92139-1~
2597/3
and
clarity to
satisfy
the requirements of 35
Ill. Adm.
Code
§
103.204(d)
and
that
the State’s
repeated assertions
that it has
no
idea what
aspects of the parties’
extremely close regulatory
relationship in
cOnnection with PCC’s Eagle No.
2 Mine over the past 45 years have given rise to
PCC’s affirmative defenses is bogus.
Nonetheless PCC opted in its
initial response to the State’s
Complaint1 to
elaborate upon the factual bases for those defenses in an
effort (1)
to advance the
process of settling
the pleadings
in
this case
by providing a more complete factual background
against which
the Board can evaluate the parties’ legal contentions; (2) to avoid Or at least limit
the possibilities either (a) that the Board would require PCC to plead the factual bases for certain
of its affirmative
defenses
in
greater
detail before considering the State’s legal cont~ntions,or
(b) that
the
Board
would
rule that
certain
PCC affirmative
defenses
might
theoretically
be
available
to it but require PCC
to
plead additional
facts to
see
if the elements of such defenses
are claimed
to exist here;
and
(3) to
obtain
some
guidance
from the
Board
as to what
greater
degree,
if
any,
of
detailed factual
allegations
would
be
required
of
PCC
to
support
those
affirmative
defenses that
the Board
might find
to
be
available
to PCC if the elements of those
defenses
can be
proven, rather than
creating a
situation
in
which
the
Board
might
determine
certain defenses to be available to PCC under certain circumstances but in which PCC would be
required
to
guess for a second
time
what
degree of specificity of factual allegations would
be
required of it in order to maintain the defenses.
In its reply to PCC’s
Response,2 the State acknowledged both (1) that PCC’s approach to
this
situation
would
contribute to
the ultimate
resolution
of the
issues raised by
the
State’s
Motion
in
a judicially
economic manner, in
that
PCC’s response has effectively
consolidated
Respondent
s
Brief
In
Opposition
To
The
State s
Motion
To
Strike
PCC s
Affirmative
Defenses
(Response), filed on or about April 11, 2003.
2
Complainant s Reply To Respondent s Brief In Opposition To
Complainant s Motion
To
Strike Respondent s
Affirmative Defenses (Reply), filed on
or about April
28, 2003.
KC-1O92139-1~
2597/3
what otherwise well could have been a two-step process of settling the pleadings into one initial
step
that will enable
the Board
to
fully resolve at least some of these issues more quickly
and
with less
effort on its part and that of the parties than would
otherwise have been the case; and
(2) that, as a result, certain of its arguments set forth in its Reply were being asserted for the first
time in
support of the State’s Motion in
light of PCC’s
exposition of additional facts upon which
it in part bases certain
of its
affirmative
defenses.
Thus, this
is
not
a situation
in
which
PCC
simply wants to have the last word (or at least a second
word) on the State’s Motion; rather, it is
a
situation
in
which
PCC seeks
an
opportunity
to
have
some word
on
certain of the State’s
arguments.
Second, as PCC noted in
its initial motion for leave to file a surreply,
it has a due process
right to
respond
to
all
of the
State’s
arguments
asserted
in
support
of the
State’s
Motion.
However, as perhaps not sufficiently explicitly stated by PCC earlier, this is
not a matter of mere
formality.
Rather, PCC indeed will be substantially prejudiced if it is denied any opportunity to
respond to
the attacks on its affirmative defenses asserted for the very first time by the State in its
Reply.
Most obviously, of course, the Board
otherwise will be presented without so much as a
PCC contention that the State’s new arguments are without merit,
much less a demonstration as
to
why that
is
so.
Furthermore, if PCC is not allowed
to
articulate its counterarguments
to
the
State’s
new arguments
at
this
time,
a court reviewing
these proceedings
might
erroneously
conclude
that
PCC has waived its
arguments against the State’s new contentions
because they
were
not
presented
in
connection with
the
disposition of the State’s
Motion.
In short,
PCC
would
be fundamentally
and
substantially
prejudiced if the State were
to
be
allowed the
Qniy
word with respect to those arguments in support of the State’s Motion asserted for the first time
in its Reply.
KC-1O92139-1~
3
2597/3
Third, it would
seem to be
a matter of fundamental fairness for PCC to be afforded the
same degree of consideration that the State has received with respect to settling the pleadings in
this
case.
The
State
filed its
initial
complaint
on
March
25,
1999.
Its
Amended Complaint,
Second
Amended Complaint, Third Amended
Complaint,
and
a
revised version
of the
Third
Amended Complaint ~
a fourth amended complaint) followed, with the last ofthese not being
filed until October 24,
2002, three years
and
eight
months
later.
In
contrast, PCC has to
date
filed
a
single
answer
that
included
16
affirmative
defenses,
one
of which ‘PCC
has
now
voluntarily withdrawn,
and ~asingle brief that includes some
further explanation of the factual
bases for certain of its fifteen remaining affirmative defenses.
It
would
be
significantly
disparate
treatment of the
parties for PCC to
be
allowed no
further effort to
state the bases for its affirmative
defenses in light of the parties’ handling of the
State’s Motion to
date.
That is, on the one hand, the State has been afforded five opportunities to
plead
its
case.
On
the
other
hand,
PCC
has
had
one
opportunity
to
plead
its
case,
one
opportunity
to
respond to
the State’s Motion
setting
forth
the State’s initial
attacks
upon
that
pleading
—
and ~
opportunity to
respond to the State’s attacks on that pleading presented for
the first time in its Reply.
In summary,
by
this
motion,
PCC seeks
nothing more
than fair treatment.
It
will
be
severely
prejudiced
in
its
ability
to
defend
the
State’s
case
against
it
if
it
is
denied
any
opportunity
to
respond to those attacks upon its affirmative defenses asserted by the State for the
first time
in its Reply.
For the reasons discussed above, the Board should
grant this motion and
accept PCC’s surreply for filing, as tendered herewith.
KC-1O92139-1~
2597/3
Date:
June 3, 2003
Respectfully submitted,
PEABODY COAL COMPANY
By its
attorneys
BLACKWELL SANDERS PEPER MARTIN LLP
Two Pershing Square, Suite 1000
2300 Main Street
Post Office Box 419777
Kansas City, Missouri
64141-6777
(816) 983-8000 (phone)
(816) 983-8080 (fax)
wblanton@blackwellsanders.com (e-mail)
Stephen
/
edinger
HEDINGER LAW OFFICE
2601 South Fifth Street
Springfield, IL
62703
(217) 523-2753 (phone)
(217) 523-4366 (fax)
hedinger@cityscape.net (e-mail)
KC-1O92139-1~~
2597/3
Respectfully submitted,
PEABODY COAL COMPANY
By. its attorneys
I
:11
W~.Bla~on
BLACKWELL SANDERS PEPER MARTIN LLP
Two Pershing Square, Suite 1000
2300 Main Street
Post Office Box 419777
Kansas City, Missouri
64141-6777
(816) 983-8000 (phone)
/
(816) 983-8080 (fax)
wblanton@blackwellsanders.com
(e-mail)
HEDINGER LAW OFFICE
2601
South Fifth Street
Springfield, IL
62703
(217) 523-2753 (phone)
(217) 523-4366 (fax)
hedinger@cityscape.net (e-mail)
KC-1O92145-1~
2597/3
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEiVED
(‘~K’F
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
jUN
4
Z003
Complainant,
)
~.
u~
tI
NOIS
pollution
Control
Board
v.
)
PCB 99-134
)
PEABODY COAL COMPANY, a Delaware
)
corporation,
)
)
Respondent.
)
RESPONDENT’S SURREPLY IN
OPPOSITION TO STATE’S
MOTION TO
STRIKE
RESPONDENT’S AFFIRMATIVE DEFENSES
Respondent, Peabody Coal Company (“PCC”),
hereby submits its surreply in opposition
to
the State’s Motion To Strike Respondent’s Affirmative Defenses (“State’s Motion”), filed on
or about February
3,
2003.
This
surreply
addresses
only
those
arguments
in
support
of the
State’s Motion
first
articulated in
the State’s Reply
To
Respondent’s Brief In Opposition
To
Complainant’s Motion To Strike Respondent’s Affirmative Defenses (“Reply”),
filed on or about
April 28,
2003.
Some of those
new arguments have been directed to
more than one of PCC’s
affirmative defenses
and
will
be
addressed
first below.
The other new arguments then will be
addressed in connection with the single
affirmative defense to which each is directed.
DISCUSSION1
A.
As
to
Disputed Facts.
In response to PCC’s exposition of additional facts upon which certain of its
affirmative
defenses
are based in part, the
State has in
its Reply in several instances2 either disputed PCC’s
All
acronyms and
shortened
terms
used in
this surreply have
the
same meaning as used in Respondent s
Brief In Opposition
To
Complainant s
Motion To
Strike Respondent s
Affirmative Defenses,
filed
by
PCC on
or
about April 11, 2003,
unless specifically stated otherwise.
KC-1O92147-1~
.
2597/3
statements
of fact or set
forth
statements
of
alleged fact
to
support
arguments
denigrating
statements of fact by PCC.
All such factual assertions
by the
State must be
disregarded at this
stage of the proceedings, as PCC’ s allegations of fact from which its affirmative
defenses arise
must be taken as true for the purpose of evaluating the legal sufficiency of those
defenses.
~
Cole Taylor Bank v.
Rowe Industries, Inc.,
PCB 001-173, 2002 Ill. ENV
LEXIS 330,
at
*6.7
(June
6,
2002). There will be
time
enough
later for the determination of whose version of the
facts is
accurate.
B.
As
To The Nature Of The
State
In its discussion of several of PCC’s affirmative
defenses,3 the State contends that PCC’s
pleading of its defenses is legally inadequate because PCC has pled its
defenses on the basis of
the State constituting a single entity.
According to the
State,
PCC should be
required to plead
with specificity just which state agency (or probably even better yet, which
state employee) did
or said
what
when
with respect
to
the
conduct
from
which
a given
defense
arises
in part.
Furthermore,
the
State
contends
that
since it has chosen
to base
its claims
against PCC
in
this
case
on
two
statutes
and
their
respective implementing
regulations
for
which
the
Illinois
Environmental
Protection
Agency
(“IEPA”)
has
primary
responsibility
within
the
State’s
executive branch
that
it
is
only
the conduct of IEPA that
may give rise
to
a PCC
affirmative
defense.
Neither contention has merit.
The Complainant
in
this
case
is
identified
in
the
State’s current
version of its Third
Amended
Complaint
(“Complaint”)
as
the
“People
of
the
State
of
Illinois,”
which
PCC
understands
to be
the conventional
characterization of the
State of Illinois
in
an
enforcement
2
~
Reply arguments directed
to PCC s Fourth,
Seventh, Eighth,
Tenth,
Eleventh, Twelfth,
and Fourteenth
Affirmative Defenses.
~
Reply arguments directed to PCC s Fourth, Fifth, Eleventh and Twelfth Affirmative Defenses.
KC-1O92147-1~
2
2597/3
proceeding like
this one,
fl~
IEPA.
Furthermore, only
Count I of the Complaint has ostensibly
been brought by
the Attorney General of Illinois
(“AG”) on
behalf of IEPA;
Counts II and
III
purportedly are being prosecuted by
the AG at her own instance on behalf of the People of the
State
of Illinois, j~,,the
State
of Illinois.
Therefore
it
is
the State
of Illinois
and gfl of its
agencies
and other political
and
administrative
structures having some
responsibility
for the
matters
that
are the subject of this case whose conduct may be
examined
and
evaluated in
the
context of PCC’s affirmative defenses.
Furthermore, it has been the State’s decisions alone that have divided the responsibilities
for regulating coal mining operations in Illinois among various agencies at various times relevant
to
the
issues
in
this
case.
It
has been the
State’s choices
as
to
which
agencies
have what
responsibilities with respect to
PCC’s mining,
coal mining refuse
disposal,
and
other activities
that
are
at
issue
in
this
case.
Similarly,
it
is
the
State
that
has
constructed
the
various
mechanisms by which its agencies responsible for regulating various aspects of PCC’s conduct at
issue in this
case share
information in this regard.
Accordingly,
for
the State
to
insist
that
PCC
explain
to
the
State
its
own regulatory
structures applicable to coal mining
operations in Illinois on
a detailed level as they have existed
from time to
time throughout the entire
45-year period under which
PCC’s conduct in question
has been scrutinized
by various state agencies (usually more than one at a time) on
more than 80
occasions
is
preposterous.
But not
more
so than the
State’s claimed inability
to
understand
which of its own agencies had which responsibilities
at various times
for evaluating Peabody’s
proposed, ongoing,
and
past mining activities, ‘administering the permit programs
applicable
to
those activities, evaluating those activities in the context of the agencies’
respective enforcement
authorities, and
otherwise carrying out their regulatory
responsibilities vis-a-vis
those activities.
KC-1O92147-1~.
3
2597/3
Nevertheless, in order to help the
State out in
analyzing how its
own regulatory
structures have
functioned
over the years,
PCC notes
that the regulation of its
mining activities
generally has
been the responsibility of the Office of Mines
and
Minerals within the Department of Natural
Resources
and
its
predecessor
agency, the former
Department of Mine
and
Minerals; while
responsibility for regulating PCC’s
coal mining refuse disposal activities and other activities that
have the potential to
result in the discharge of pollutants into surface water or their release
into
groundwater has been the responsibility of IEPA and
its
predecessor agency.4
For more details
as to how~
these agencies
have interacted with PCC over the years,
PCC suggests
that
the State
review its
own
files relating
to
its
ongoing
permitting,
inspection
and
other review of,
and
evaluation
of PCC’s
mining
activities
and
interview
its
own employees who carried
out
these
tasks.
C.
As
To
Possible Re-Pleading
In its Reply, the State repeatedly urges the Board to
deny PCC leave to
re-plead any of its
affirmative defenses.5
By
doing so, the State seeks an
uneven playing field in this
case.
“
Not
so
incidentally, the
State s repeated contention in association with these attacks
that
PCCs statement
that
the
State
authorized
the
coal mining refuse disposal and other activities
complained
of
by the
State
in this case
constitutes a legal
conclusion rather than
an allegation
of fact
requires
two
responses.
First, when (a) the
State s
statutes
and regulations prohibit the
disposal of coal mining
refuse
on
or in the
ground
without a
permit
and prohibit
the
discharge of pollutants into surface waters
of the
State without a permit, but (b) IEPA has
issued PCC
a series of
permits
that
allow
it to do
both of those things for many
years, then
(c)
it does
not seem unreasonable to state
that
the
State has authorized
those
activities
as a matter of
f~.
In
any event,
the State s apparent contention
that
an
affirmative
defense may
not
contain
any conclusion
of law is
fundamentally unsound.
PCC is unaware
of ~
pleading system in which affirmative defenses
do
not include a statement
(however brief)
of the legal theories
upon
which the
pleader contends liability in
a
case
is avoided,
including an
explicit
legal conclusion in that
regard.
The
Illinois pleading system merely expressly requires
In
addition
a statement of facts that
justify the
application
of a
given
legal
principle of avoidance in a given
case, stated in sufficient detail to fairly place
the
prosecuting party on
notice of the
issues to be resolved at
trial, not constitute an
initial statement of proposed findings of
detailed facts.
There is
nothing in 35
Ill. Adm. Code/ 103.204(d)
that
prohibits
the
pleading of ultimate facts, which
the
State
inaccurately characterizes as
legal conclusions.
~
Reply argument directed
to PCC s Tenth Affirmative Defenses and
the State s request for relief stated at
the end thereof.
KC-1O92147-1~~~
4
2597/3
It would
seem to be
a matter of fundamental fairness
for PCC to be
afforded the same
degree of consideration that the
State has received with
respect to ‘settling the pleadings in
this
case.
The State filed its initial complaint
on March 25,
1999.
Its Amended Complaint, Second
Amended Complaint, Third Amended Complaint,
and
a revised version of the Third Amended
Complaint (.i&., a fourth amended
complaint) followed, with the last of these not being filed until
October 24,
2002,
filed three years and eight months later.
In contrast, PCC has to
date filed a
single answer that
included
16
affirmative
defenses,
one of which
PCC has now voluntarily
withdrawii,
and
a single
brief that includes
some
further explanation of the factual bases for
certain of its fifteen remaining affirmative defenses.
It
would
be
significantly
disparate
treatment of the parties for PCC to
be
allowed
no
further effort to state the bases for its
affirmative defenses
in light of the parties’ handling of the
State’s Motion to
date.
That is, on the one
hand, the State has been afforded five opportunities to
plead
its
case.
On
the
other
hand,
PCC
has
had
one
opportunity
to
plead
its
case,
one
opportunity
to
respond to
the
State’s Motion
setting forth
the
State’s initial
attacks
upon
that
pleading
—
and ~
opportunity to respond
to
the State’s attacks on
that pleading presented for
the first time in its Reply.
.
In
summary, by this
motion,
PCC seeks
nothing more than fair treatment.
It
will be
severely
prejudiced
in
its
ability
to
defend
the
State’s
case
against
it
if it
is
denied
any
opportunity
to respond to those attacks upon its affirmative defenses asserted by the State for the
first time in its
Reply.
KC-1O92147-1~~~
2597/3
.
D.
As To Individual Defenses
First and Second Affirmative Defenses
Contrary
to
the
State’s
contention,
PCC
does
not
contend
that
the
180-day
notice
requirement of Section
31
should
be
applied
retroactively here.
Rather, PCC contends that
applying Section
31
prospectively means that JEPA is by
the express terms of Section 31
barred
from prosecuting claims of violations of the Act that
occurred more than
180 days before
the
effective date of Section 31.
PCC acknowledges that this
Board has ruled contrary to PCC’s position with respect
to
this
issue
in
the
cases
cited
by
the
State.
However,
PCC
respectfully requests
the Board
to
reconsider its
position
on
this
issue;
and
PCC nevertheless adheres
to
its
contentions
in
this
regard in order to
preserve this issue for review in
the event of future review of certain aspects of
this
case by the courts.
Fourth Affirmative Defense
First,
the State’s assertion that IDNR (and by implication) no state agency could regulate
PCC’s disposal practices at the Mine prior to August 1, 1985
is categorically inaccurate.
Chapter
Four of this
Board’s Rules
established
regulations
applicable
to
PCC’s
coal
mining
refuse
disposal practices, as well as PCC’s
discharge of water accumulated at the Mine
into the waters
of Illinois, at all
times prior to
the Chapter Four rules either being superseded by other regulatory
programs
or simply being re-codified.
Specifically, DMM issued permits
to PCC authorizing the
coal mining
refuse
disposal
practices
and
discharges
to
surface water at issue
in
this
case in
accordance
with
the
Chapter
Four
regulations,
and
DMM
inspectors
conducted
periodic
inspections
of
those
PCC
activities
to
determine
whether
they
were
being
carried
out
in
accordance with the terms
of PCC’s
Chapter Four permits
and confirmed
that
to
be
the case.
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More specifically,
as a result of its inspectors’
reports, DMM was well aware of PCC’s disposal
of coal mining refuse in
trenches and at no time
took any action either directed to PCC or within
the
agency that
suggested
that
DMM
considered
this
to
be
either
non-compliance’ with
the
provisions of PCC’s Chapter Four permits or an environmental problem generally.
Second,
the
State’suggestion
in
its
Reply
that
there
is
some
significance
in
DMM
prohibiting
PCC from
continuing
to
dispose
of coal mining
refuse
in
trenches at the
Mine
in
1985
is. interesting.
It
is
PCC’s
understanding that
the State
complains
in
this
case
of PCC
disposing.of coal mining refuse on
or in the ground at the Mine generally.
If the State
has now
determined that its claims against PCC are
based only upon the disposal of coal mining refuse
in
trenches, the
State
should
clarify
its
present contentions
in
that
regard forthwith (perhaps
by
seeking leave to file a Fourth
Amended Complaint
—
or maybe just a third version of its Third
Amended Complaint).
Seventh and Eighth Affirmative Defenses
First,
the State’s suspicion
that
PCC knowingly
reversed the
order of its
Seventh and
Eighth Defenses in its discussion of those defenses in its Response is not accurate.
The reversal
of order
was inadvertent;
and
it
is
in
no
way affected PCC’s
substantive
discussion
of those
defenses
in
its Response.
However, PCC’s
counsel apologizes
to
the Board
and
the State’s
counsel for any inconvenience this occurrence may have caused them.
Second, contrary to the State’s assertion, the settlement agreement between PCC and the
Saline
Valley Conservancy District (“District”)
is
not
subject to
the jurisdiction of any federal
court.
As PCC has provided a copy of that settlement agreement to
the State,
and the State has
access to the court files pertaining
to the District’s lawsuit against PCC, the State’s comments
in
this regard are inexplicable.
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‘
2597/3
Third,
the
State’s comments
regarding
this Board’s Subtitle
D
regulations
is6
totally
irrelevant to any
issue in this
case.
Those regulations were duly promulgated
by this Board
and
have
been
in
effect
for
more
than
20
years.
There
is
currently
no
proceeding
in
any
administrative
or judicial
forum
by
which
any
legal
challenge to
those
regulations has been
initiated.
Although
disagreements regarding the propriety of the Subtitle D regulations
among
certain state and
federal
regulators,
members of the
coal industry,
and
environmental
groups
have arisen
in
the context of an
NPDES
permit case and
are ongoing, the Subtitle D regulations
are currently a part of Illinois law and may not simply be disregarded by the State.
Ninth Affirmative Defense
The
State’s
assertions
in
its
Reply regarding
PCC’s
Ninth
Affirmative
Defense
are
puzzling.
Has the State abandoned its
claims as set
forth in Counts I and II of its Complaint that
PCC has violated Section
12(a) and
(d) of the Act?
Is the State generally still basing
its claims
against PCC in this
case
on
the theories asserted
in
its
Complaint or
is
it now basing them
on
those stated in its Reply, which are clearly contrary to those
stated in the Complaint?
Tenth Affirmative Defense
In light
of the
many coal mining
operations
in
Illinois
conducted
during
the 45-year
period covered by this case, the State’s ability
to point to
one other enforcement case purportedly
similar to this one hardly defeats PCC’s Tenth Affirmative Defense as a matter oflaw.
Eleventh Affirmative Defense
The State does not dispute the fact that the NOV IEPA issued to PCC do ~
contain any
allegation that PCC has caused “water pollution” or deposited contaminants upon the land so as
to create a water pollution hazard.”
Nor does the State assert that any such contention was ever
6 ~
~
Adm. Code, Subtitle D.
KC-1O92147-1~~~
8
2597/3
articulated
to
PCC in
any
correspondence,
conversation,
or meeting between IEPA
and
PCC
representatives at any
time prior
to
this case being referred by IEPA to
the AG.
Nor does the
State
contend that it ever articulated the legal theories that PCC’s conduct complained of in this
case threatened and
caused “water pollution” prior to
the filing
of the original complaint in this
case.7
The
purpose of the Section
31
notice
provision
is
to
give the
recipient of an
NOV
a
statement of IEPA’s factual and legal contentions as to an
alleged violation of the Act.
It is not
merely
an announcement that
the agency
is
unhappy
and an
invitation
for the
recipient to
ask
“Why?”
Fifteenth Affirmative Defense
The
State
should
re-read
its
Complaint,
which
clearly
identifies
which
of the
water
quality standards allegedly applicable at various
locations at various
times
allegedly have been
violated by PCC.
The State’s meticulous presentation
in this regard shows on
its face which of
those
groundwater standards have been superseded and
no longer were in effect by the
time the
Complaint case was filed.
CONCLUSION
For the reasons discussed above
and
in
PCC’s
Response, the State’s Motion
should
be
denied or, in the alternative, PCC should be granted leave to file an amended answer to
address
any pleading deficiencies
in its
original
answer determined by
the Board to exist in connection
with its disposition of the State’s Motion.
~Of course, if the
State truly is now
contending
by
all
Counts
of its Complaint
only that
PCC s conduct has
caused exceedances
of various
groundwater standards
allegedly
applicable
at
certain places
at
certain
times,
as
suggested by its
Reply comments
directed
to PCC s Ninth Affirmative
defense,
that may or may
not
have some
significance as to this defense.
KC-1O92147-1’~~
2597/3
Date:
June 3, 2003
Respectfully
submitted,
PEABODY COAL COMPANY
By its attorneys
~
W. C. Blanton
BLACKWELL SANDERS PEPER MARTIN LLP
Two Pershing Square,
Suite 1000
2300 Main Street
Post Office Box 419777
Kansas City, Missouri
64141-6777
(816) 983-8000 (phone)
(816) 983-8080 (fax)
‘Stephen F
HEDINGER LAW OFFICE
2601
South Fifth Street
‘Springfield, IL
62703
(217) 523-2753 (phone)
(217) 523-4366 (fax)
hedinger@cityscape.net (e-mail)
KC-1O92147-1~
2597/3
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