RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARI9LERK’S OFFICE
jul
1
PEOPLE
OF
THE
STATE
OF ILLINOIS,
)
STATE OF ILLINOIS
Complainant,
)
Pollution COntrol Board
)
-vs-
)
No. 05-181
)
PAflISON ASSOCIATES
LLC, an
)
(Enforcement
-
Air)
Illinois limited liability company,
)
and
5701
SOUTH CALUMET LLC, an
)
illinois limited liability company,
)
)
Respondents.
)
To:
Mr. Neal Weinfield
Mr. Bradley P. Halloran
Bell Boyd & Lloyd
Hearing Officer
70 West Madison
100W. Randolph, Room 11-500
Suite 2900
Chicago,
II.
60601
Chicago,
II.
60602
NOTICE OF FILING
PLEASE TAKE NOTICE that we have today, July 22, 2005, filed with the Office of the Clerk of
the
Illinois Pollution Control Board an original and nine
copies of our Response to Respondents’ Motion
to Dismiss Counts I-V ofthe
Complaint, a copy of which is attached herewith and served upon
you.
Respectfully submitted,
PEOPLE OF THE
STATE OF ILLINOIS
LISA MADIGAN
Attorney General ofthe
State
Illinois
BY:
_______________
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
FIr.
Chicago,
IL 60601
(312) 814-1511
THIS DOCUMENT
IS PRiNTED ON RECYCLED PAPER
ItECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
LERK’s OFFICE
JIB
~2
PEOPLE OF THE STATE OF ILLINOIS,
)
~
5
STATE OF ILLINOIS
Complainant,
)
OIIUtton
Control
Board
)
-vs-
)
No.PCBOS-181
)
(Enforcement—Air)
PATTISON ASSOCIATES LLC, an
)
Illinois limited liability company,
)
and 5701
SOUTH CALUMET LLC, an
)
Illinois
limited liability company,
)
)
Respondents.
)
COMPLAINANT’S RESPONSE
TO MOTION TO DISMISS
Complainant, PEOPLE OF THE
STATE OF ILLINOIS, by its attorney, LISA
MADIGAN, Attorney General ofthe State ofIllinois, hereby responds to the Motion of
Respondent Pattison Associates
LLC and Respondent 5701
South
Calumet LLC(collectively
“Respondents”), to
Dismiss Counts I through V ofthe Complaint,
said counts being all inclusive
ofthe Complaint.
INTRODUCTION
1.
On April 4,2005, Complainant filed a five-count Complaint against Respondents.
The Complaint alleged air pollution,
failure to thoroughly inspect prior to renovation,
failure to
submit notification,
failure to
follow proper emission control procedures, and failure to
follow
proper disposal procedures, including violations ofthe Illinois Environmental Protection Act,
415
ILCS
5/ et seq.(2002)(”Act”)
and the Illinois Pollution
Control Board’s Air Pollution
Regulations, as found in Title
35,
Subtitle B, Chapter I of the Illinois Administrative Code.
All
ofthe counts in the Complaint were in response to the removal of asbestos at an uninhabited
apartment building located at 5701
South Calumet Avenue in
Chicago, Illinois being renovated~
1
by the Respondents.
Said building is owned by Respondent
5701
South Calumet
LLC, and the
renovation work was being performed by Respondent Pattison Associates.
2.
On June 24, 2005,
Respondents filed their Motion to Dismiss this
cause pursuant to
Section 2-615 ofthe Code ofCivil Procedure.
Respondents’
Motion to
Dismiss is premised
upon the Complainant’s alleged
failure to state a claim.
LEGAL STANDARD
3.
“In ruling on a section 2-615
motion
to dismiss, the court must accept as true all well-
pleaded facts in the complaint and all reasonable
inferences that can be drawn therefrom.”
Brvson
v.
News America Publications,
174 Ill.2d 77, 86, 672 N.E.2d
1207,
1213
(1996).
In
Brvson.
the Court further stated that a court should not dismiss an
action unless it appears that no
set of facts could be
proved which would entitle the plaintiff to
recover.
Bi-vson,
174
Ill. 2d
at
86-87, 672 N.E.2d 1207.
See also
Doe ex reL Ortega-Piron
v.
ChicagoBoard ofEducation,
213
Ill.2d
19, 23-24, 820 N.E.2d 418(2004), and
Jenkins v.
Concorde Acceptance Corp.,
345 Ill.
App.3d 669, 674, 802 N.E.2d 1270(1st Dist. 2003).
4.
“In determining whether a complaint states facts or conclusions, the complaint must
be considered as a whole and not in its disconnected parts”.
Courtney v.
Board ofEducation of
the City of Chicago,
6 Ill. App.3d 424,
286 N.E.2d
25,
26
(Pt
Dist.
1972) quoting
Stenwall
y.
Bergstrom,
398 Ill. 377,
75 N.E.2d 864 (1947).
Respondents state in their Motion that a
pleading must be factually and
legally sufficient.
Motion to Dismiss,
¶
1.
But, in spite ofthe
requirement that the complaint must contain allegations of fact bringing the case within the
stated cause of action, “the plaintiffis not required to set out evidence; only the ultimate facts to
be proved should be alleged, not the evidentiary facts tending to prove such ultimate facts.”
Q~
2
ofChicago v.
Beretta USA.
Corporation,
213 ill.2d 351,
821
N.E. 2d 1099,
1113
(2004),
quoting
Chandler
y.
illinois Central R.R.
Co.,
207 Ill.2d,
331, 338, 798 N.E.2d 724 (2003).
ARGUMENT
Count I
5.
Respondents claim that the Complainant has not pled that the Respondents caused air
pollution.
Motion to Dismiss,
¶
3.
This is
a misstatement.
The Complaint defines air pollution
in accordance with the Illinois Environmental Protection Act,
Section 3.02, 415 ILCS
5/3.02
(2002), as follows:
“AIR POLLUTION”
is
the presence
in the
atmosphere
of one
or
more
contaminants
in
sufficient
quantities
and
of
such
characteristics
and
duration as to
be injurious
to
human,
plant,
or
animal life, or to
unreasonably interfere with
the enjoyment of life
orproperty.
Complaint, Count I,
¶
18.
Pursuant
to
the
Act,
the
Complainant
must
prove
at hearing that
the Respondents
caused
or
threatened
to
cause
the discharge of asbestos into
the
environment
so
as
to
cause or
tend
to
cause
air pollution,
415
ILCS
5/9(a)
(2002) and
35
Ill.
Adm.
Code
201.141
(2002) (emphasis
added).
Complainant
alleges the improper containment ofasbestos as causing or threatening the
discharge ofthe
friable
asbestos into the
atmosphere.
Complaint,
Count I,
¶
13.
Complainant
further identifies
the
asbestos
continuing
in
this
friable
state
and
exposed
to
the
elements
as
threatening
the
discharge of asbestos
into
the
atmosphere,
causing
or
allowing
air pollution.
Complaint,
Count
I,
¶
26.
The
Complaint
further
alleges
that
asbestos
is
a
known
human
carcinogen,
Complaint,
Count
I,
¶
15.
Apparently,
the
Respondents
are
denying
these
3
allegations, but
improperly so in their Motion to
Dismiss, instead ofthrough
the proper pteading
of an Answer.
6.
One of the few decisions that addresses the issue of pleading,
as opposed to proving,
a
violation of Section
9(a) of the
Act,
confirms the
sufficiency of Count I.
In
Ralston Purina
Company
v.
Pollution
Control Board,
the
complainant
alleged
that the
company
“operated
its
plant
since the specified date so
as to
cause, threaten,
or allow the discharge or emission of fly
ash and other contaminants into the environment so as to
cause, or tend to
cause, air pollution”,
and
that
the company
“created such intense
odors
in
the operation of its
plant
so
as
to
cause,
threaten, or allow air pollution.”
In response to
the company’s
argument
that the allegations of
the complaint
were not
sufficiently
specific, the Court
concluded that
the company “clearly
.
was put upon
specific notice as to its
alleged violation.”
27
Ill.App.3d
53,
325
N.E.2d 727,
729
(4th
Dist.
1975).
In
the instant
case,
the Respondents
have
also
clearly been put
on
specific
notice
as
to
the alleged violations,
including
the nature of the
contaminant
(asbestos), the time
frame and the location.
It appears that Respondents are, in actuality, contesting the facts as pled,
not the legal sufficiency ofthe complaint.
Count II-IV
7.
Respondents
claim that the Complainant has not presented evidence that Respondents
have
“stripped,
removed,
dislodged,
cut,
drilled,
or
similarly
disturbed
asbestos...”
certain
quantities of asbestos containing material.
Motion to Dismiss,
¶
6.
8.
As
owners/operators of the
building
undergoing demolition
and
reconstruction, the
Respondents are liable for the exposed
asbestos in the building.
The building contained asbestos
material
which
had
been
stripped
from
the
pipes,
with
some
of it
still
remaining,
and
the
4
Respondents
were perfonning renovation
activities
at the
time
of the
inspection.
Complaint,
Count
I,
¶
6-12, Count
H,
¶
25-28.
In
Yuretich
v.
Sole,
the
Court
held
that
where
facts of
necessity are within the
defendant’s knowledge and not within plaintiffs knowledge,
a complaint
which
is
as complete
as the
nature of the
case
allows
is
sufficient.
259
Ill.
App.3d
311,
631
N.E.2d
767,
769-770 (4th
Dist.
1994).
In the
instant
case, the Complainant
has alleged
facts
within
its
knowledge or
that
can be
inferred
from
the circumstances.
Some
facts,
such
as the
parameters
of Respondents
renovations,
are
solely within the
Respondents
knowledge
at this
time.
The Complaint before the Board is as complete as the nature ofthe case allows.
9.
Respondents
are contending
that they
are not
responsible for the removal
of any of
the asbestos, which is a dispute of material
fact.
A motion to dismiss
is
not the proper pleading
for ajudgment on the resolution ofthis factual issue.
See
Vine Street Clinic vs. HealthLink, Inc.,
353 Ill.App.3d 929, 932,
819 N.E.2d 363 (4~
Dist. 2004).
Count V
10. Respondent alleges that Complainant does not show that Respondents
are the
owner/operators that
are responsible for the demolition and renovation of an
asbestos containing
building.
Motion
to
Dismiss,
¶
7.
In fact, the complaint
does allege
that Respondents
are the
owners/operators
of the property
and
that
demolition
and
renovation
are taking
place
or
have
taken
place
at the property.
Complaint, Count
I,
¶
4-5,
11,
24-25.
This
issue
is,
once again,
a
factual
dispute
and
has no
place
in
a Motion
to
Dismiss based on
Section
2-615 of the Illinois
Code of Civil Procedure.
CONCLUSION
Complainant has affirmatively shown that
Counts
I through V
are legally sufficient and
state
claims
pursuant
to
the
Act
and
related
regulations.
The Complaint has
clearly set
out the
5
ultimate
facts
to
be
proved
and
the
Respondents’
are
specifically
informed
as
to
what
the
violations
are against
them.
Respondents’
Motion
to
Dismiss
Counts
I through
V pursuant
to
Section 2-615
should be denied, and Respondents
should be ordered to file an
answer addressing
the substance ofthe allegations
in the Complaint.
PEOPLE
OF
THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General ofthe
State ofIllinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARTE CAZEAU, Chief
Environmental Bureau
BY:________
I1AULA B. WHEELER
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th
Fl.
Chicago, IL 60601
(312) 814-1511
6
CERTIFICATE OF
SERVICE
I, PAULA BECKER WHEELER, an Assistant Attorney General in the
case ofPeople v. Pattison
Associates et al.. PCB 05-18 1,
do certify that I caused to
be served this
22Dd
day ofJuly,
2005, the
foregoing Response to Respondents’ Motion to Dismiss Counts I-V ofthe Complaint upon the persons
listed on said Notice by depositing same in an
envelope,
by
first class postage prepaid, with the United
States Postal Service at
188 West Randolph Street, Chicago, Illinois,
at or before the hour of5:00 p.m.
PAULA BECkER WHEELER
July 22,
2005
