ILLINOIS POLLUTION CONTROL BOARD
    August 1, 1996
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    FRANK MERKENDORFER, BELDEN
    TOOLS, INC. and PHIL PINELLO,
    Respondent.
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    PCB 96-208
    (Enforcement - RCRA)
    ORDER OF THE BOARD (by E. Dunham):
    On July 18, 1996, the People of the State of Illinois, complainant, filed a motion to
    strike Belden Tool Inc.’s (Belden) affirmative defenses. Complainant requests that the Board
    strike the second and/or fourth affirmative defense or grant complainant 21 days to respond to
    each affirmative defense. Belden filed a response to the motion to strike on July 29, 1996.
    The complaint in this matter was filed on March 29, 1996. Belden filed its answer and
    affirmative defenses on June 25, 1996. In its second affirmative defense, Belden asserts that if
    any liability is found it should be allocated among all respondents. In its fourth affirmative
    defense, Belden reserves the right to raise additional affirmative defenses and supplement those
    asserted, if necessary.
    Complainant asserts that Belden Tool’s second and fourth affirmative defense should be
    stricken because respondent has failed to plead any facts which would inform complainant of
    the nature of its defense. Complainant maintains that respondent has not plainly set forth its
    defense as required by 5/2-613(d) of the Code of Civil Procedure of Illinois.
    Belden asserts that the affirmative defenses are properly pled and reasonably inform the
    complainant of the nature of its defense. Belden argues that the test for a properly pled
    affirmative defense is whether the allegation of the defense gives color to the opposing party’s
    claim and asserts a new matter on which the apparent claim is defeated. (See Goldman v.
    Walko Tool and Engineering Co., 243 Ill. App. 3d 981, 989, 614 N.E. 2d 42 (1st Dist.
    1993); Vanlandingham v. Ivanow, 246 Ill. App. 3d 348, 357, 615 N.E. 2d 1361 (4th Dist.
    1993).)
    Section 101.100 of the Board's procedural rules specifically states that the Code of
    Civil Procedure shall not expressly apply to proceedings before the Board; however, parties
    may argue the applicability absent a provision in the Board's procedural rules. (35 Ill. Adm.
    Code 101.100.) Neither party has presented any arguments to the Board on the applicability
    of the requirements of the Code of Civil Procedure to the filing of affirmative defenses. The
    Board’s procedural rules contain provisions on the filing of affirmative defenses.
    2
    Section 103.122(d) allows the filing of an affirmative defense with the answer or
    supplemental answer prior to hearing.
    Respondent may file an answer within 30 days of receipt of the
    complaint. All material allegations of the complaint shall be taken as
    denied if not specifically admitted by answer, or if no answer is filed.
    Any facts constituting an affirmative defense which would be likely to
    take the complainant by surprise must be plainly set forth prior to hearing
    in the answer or supplemental answer filed pursuant to section
    103.210(b).
    The Board denies the complainant's motion to strike the affirmative defenses. The
    affirmative defenses asserted by respondent in its answer assert facts "constituting an
    affirmative defense which would be likely to take complainant by surprise". The affirmative
    defenses properly refer to facts already raised in the complaint and the answer and no
    additional facts need to be pled. (Fitzpatrick v. City of Chicago, 131 Ill. App. 3d 582, 475
    N.E. 2d 995, 998 (1985).) The Board will not deny the respondent the opportunity to present
    facts and arguments at hearing in support of the affirmative defenses raised in the answer. The
    Board’s procedural rules allow for the filing of supplemental pleadings in which additional
    affirmative defenses may be raised, so long as no undue surprise results that cannot be
    remedied by a continuance. (35 Ill. Adm. 103.210.)
    The Board finds that the affirmative defenses are properly pled in this matter and denies
    the motion to strike. Complainant is granted leave of the Board for 21 days to file a response
    to the affirmative defenses.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _____ day of ___________, 1996, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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