ILLINOIS POLLUTION CONTROL BOARD
April 18, 2002
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CHIQUITA PROCESSED FOODS, L.L.C.,
a Wisconsin limited liability corporation,
Respondent.
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PCB 02-56
(Enforcement - Water)
ORDER OF THE BOARD (by T.E. Johnson):
On February 11, 2002, the complainant filed a motion to strike affirmative defenses.
On February 22, 2002, Chiquita Processed Foods, L.L.C., a Wisconsin limited liability
corporation (Chiquita) filed a response to the motion to strike. The complainant filed a request
for permission to reply to the response on March 11, 2002. Chiquita filed a response to the
request for permission to reply on March 22, 2002.
This matter is before the Board on a complaint filed on November 9, 2001, alleging
that Chiquita caused or allowed water pollution in violation of the Environmental Protection
Act (Act) (415 ILCS 5/1
et seq
. (2000)) and the associated regulations at its pumpkin
processing facility located in Princeville, Peoria County. On January 7, 2002, Chiquita filed
an answer to the complaint that set forth four affirmative defenses.
For the reasons outlined below, the Board denies the motion to strike affirmative
defenses.
AFFIRMATIVE DEFENSES
In its answer, Chiquita asserts a number of facts in support of each affirmative defense
and the defense. The defenses themselves are referenced in more than one paragraph, and a
summary of the contested affirmative defenses follows:
Defense I to Counts I, II, and III: Satisfaction and Discharge
Chiquita contends that to the extent that any contaminants were discharged into the
environment, the discharge was not caused by Chiquita but by a rupture to a pipeline due to
vibrations from trains passing above. Chiquita also contends by taking all prudent measures to
prevent discharges or deposition of contaminants, it satisfied and discharged its duties under
Section 12(a) of the Act. 415 ILCS 5/12(a) (2000).
2
Defense II to Counts I, II, and III: Uncontrollable Circumstances
Chiquita asserts that the rupture of the forcemain that resulted to contaminants being
discharged into the environment was the result of vibrations caused by trains passing above,
and caused by circumstances beyond Chiquita’s control.
Defense I to Count V: Satisfaction and Discharge
Chiquita contends that to the extent that any contaminants were discharged into the
environment so as to cause or tend to cause water pollution, the discharge was not caused by
Chiquita but by heavy rains and rapid snow melt which necessitated emergency discharges.
Chiquita also contends by taking all prudent measures to prevent discharges or deposition of
contaminants, it satisfied and discharged its duties under Section 12 of the Act. 415 ILCS 5/12
(2000).
Defense II to Count V: Uncontrollable Circumstances
Chiquita asserts that the emergency discharges were necessitated by uncontrollable
circumstances including rainfalls and rapid snow melt placing Chiquita’s lagoons and storm
water retention basin under extreme stress, and that Chiquita therefore satisfied and discharged
its duties under Section 12 of the Act. 415 ILCS 5/12 (2000).
MOTION TO STRIKE AFFIRMATIVE DEFENSES
Complainant’s Motion
The complainant moves to strike each affirmative defense. The complainant asserts that
the first affirmative defense to counts I, II, and III does not avoid the legal effect or defeat the
causes of action set forth in the complaint even if true. Mot. at 2.
1 The complainant maintains
that a long line of precedent holds that the owner of the source of pollution causes or allows
the pollution within the meaning of the statue, is responsible for that pollution, and that the test
to apply is whether or not an alleged polluter exercised sufficient control over the source of the
pollution.
See
People v. A.J. Davinroy Contractors, 618 N.E. 2d 1282, 1286 (5th Dist. 1993)
citing People v. Fiorini, 574 N.E. 2d 612, 623 (1991). The complainant argues that necessary
precautions were not taken in this case and that the possibility that a sewer line may break due
to outside forces is not unexpected. Mot. at 3. The complainant contends that as the NPDES
1 The complainant’s motion to strike affirmative defenses will be cited as “Mot. at __”;
Chiquita’s response to the motion to strike will be cited as “Resp. at __”; the complainant’s
request for permission to reply will be cited as “Reply at __.”; Chiquita’s response to the
complainant’s request for permission to reply will be cited as “Resp. to reply at __.”
3
permittee, the liability of the forcemain rupture and its subsequent fish kill falls on Chiquita.
Mot. at 4.
As to the second defense to counts I, II, and III, the complainant argues that by having
control of the forcemain and its contents, Chiquita had the capability of controlling the source
of the pollution, and that by not controlling the source of the pollution has violated Section 12
of the Act. Mot. at 4.
The complainant contends that Chiquita’s defenses to count V should be stricken
because Chiquita did control the source of the discharge – the lagoon system – and has not
sufficiently alleged that it took precautions to prevent the discharge. Mot. at 5. Finally, the
complainant notes that Chiquita had the opportunity to seek a provisional variance but chose
not to do so. Mot. at 6.
Chiquita’s Response
In response, Chiquita asserts that where the well-pleaded facts of an affirmative defense
raise the possibility that the party asserting them will prevail, the defense should not be
stricken. Resp. at 2. Chiquita next contends that Board procedural rules provide that facts
asserted that are not of record in the proceeding must be supported by oath, affidavit or
certification in accordance, and that the complainant has not complied with this requirement in
its motion to strike which asserts numerous facts that are not of record in this proceeding.
Id
.
Chiquita requests that these facts be stricken, and that the motion must be denied because it is
based on unsupported facts not of record in this proceeding.
Chiquita asserts that it is recognized that the Act does not impose strict liability, and
that the owner of the source of pollution is not responsible for that pollution if the facts
establish that the owner either lacked the capability to control the source or has undertaken
extensive precautions to prevent vandalism or other intervening causes. Resp. at 5-6,
citing
People v. A.J. Davinroy Contractors, 618 N.E. 2d 1282, 1286-1287 (5th Dist. 1993).
Chiquita contends that if the affirmative defenses are accepted as true, as they must be
for purposes of the complainant’s motion, the facts alleged defeat the complainant’s claims in
the complaint. Resp. at 6. Finally, Chiquita concludes that the motion to strike must be
denied because the facts asserted, if proven, raise the possibility that Chiquita will prevail.
Resp. at 7.
Chiquita also makes three alternative requests for relief. First, that if the Board finds
that insufficient facts have been alleged in support of the affirmative defenses that the Board
provide guidance on the level of specificity required of respondents when pleading and grant
Chiquita leave to amend its affirmative defenses in a supplemental answer. Resp. at 8.
Second, that if the Board strikes the affirmative defenses as insufficient as a matter of
law, the Board either expressly reverse its prior holding that the Act does not require strict
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liability or expressly distinguish the elements of
malum prohibitum
as applied by the Board
from the elements of strict liability so the regulated community may better understand how the
Board differentiates between these two concepts. Resp. at 8.
Third, if the Board strikes the affirmative defenses as insufficient as a matter of law
that the Board find the affirmative defenses, if proven, are mitigating factors that could affect
the penalty, and that Chiquita be allowed to introduce such facts at hearing. Resp. at 8.
Complainant’s Request for Permission to Reply
In its request for permission to reply, the complainant asserts that Chiquita seriously
mischaracterizes the complainant’s motion to strike and that a reply is necessary to clarify the
misleading statements made by Chiquita so the Board will be fully and accurately informed
when it rules on the motion. Reply at 1. The complainant disagrees that its motion relies on
unsupported factual allegations not of record.
Id
. The complainant argues that the facts of an
affirmative defense must be pled with the same specificity as required by the complainant’s
pleading. Reply at 2. The complainant contends that, in its motion, it clearly articulated that
Chiquita did not set forth the necessary facts to establish the affirmative defenses.
Id
.
The complainant asserts that Chiquita has not alleged facts that would establish a lack
of control over the pollution, and that Chiquita’s efforts to manufacture unsupported factual
allegations ignore what was pled in the complaint and what Chiquita admitted in its answer.
Reply at 3-4. Complainant continues that Chiquita tries to further mislead the Board by
stating that the complainant does not support the assertion that necessary precautions were not
taken by Chiquita. Reply at 4. The complainant concludes that by dispelling the smoke screen
covering the holes in Chiquita’s affirmative defenses, the Board will accelerate resolution of
this case.
Id
. Accordingly, the complainant requests the Board grant complainant leave to
reply.
Chiquita’s Response to the Request for Permission to Reply
Chiquita first asserts that the complainant has not alleged or demonstrated that material
prejudice will result if the leave to reply is not granted. Resp. to reply at 2. Chiquita contends
that complainant’s request for permission to reply is actually a reply discussing case law
relating to the underlying issues in the motion to strike.
Id
. Chiquita denies the allegations
that it mischaracterized facts or attempted to mislead the Board, and asserts that the Board need
only look at the record to find the allegations are without merit. Resp. to reply at 3. Finally
Chiquita asks that, to the extent the request for permission to reply is actually a reply, it should
be stricken.
Id
.
DISCUSSION
Complainant’s Request for Permission to Reply
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The complainant’s request for permission to reply is, as argued by Chiquita, the
equivalent of a reply. The Board’s regulations provides that “the moving person will not have
the right to reply, except as permitted by the Board or hearing officer to prevent material
prejudice.” 35 Ill. Adm. Code 101.500(e). Although not specifically alleging that material
prejudice will occur if the reply is not accepted, the complainant does assert that the reply is
necessary to clarify misleading statements. The Board infers that to deny the reply would
result in material prejudice. Accordingly, the reply is accepted.
Complainant’s Motion to Strike
A motion to strike an affirmative defense admits well-pleaded facts constituting the
defense, only attacking the legal sufficiency of the facts. International Insurance Company v.
Sargent and Lundy, 242 Ill. App. 3d 614, 630-31, 609 N.E.2d 842, 853-54 (1st Dist. 1993),
citing Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 854, 539 N.E.2d 787 (1989).
“Where the well-pleaded facts of an affirmative defense raise the possibility that the party
asserting them will prevail, the defense should not be stricken.” International Insurance, 242
Ill. App. 3d at 631, 609 N.E.2d at 854.
In an affirmative defense, the respondent alleges “new facts or arguments that if true,
will defeat . . . the government’s claim even if all allegations in the complaint are true.”
People v. Community Landfill Company, PCB 97-193, slip op. at 3 (Aug. 6, 1998). When
asserting an affirmative defense, “the test is whether the defense gives color to the opposing
party’s claim and then asserts new matter by which the apparent right is defeated.” Condon v.
American Telephone and Telegraph Company, Inc. 210 Ill. App. 3d 701, 709, 569 N.E.2d
518, 523 (2nd Dist. 1991), citing Worner Agency v. Doyle, 121 Ill. App. 3d 219, 222, 459
N.E.2d 633, 635 (4th Dist. 1984).
The Board denies the complainant’s motion to strike in its entirety. The complainant is
correct in stating that the owner of the source of pollution causes or allows the pollution within
the meaning of the statue. Further, the test to apply in determining whether an alleged polluter
has violated that Act is whether or not an alleged polluter exercised sufficient control over the
source of the pollution.
See
People v. A.J. Davinroy Contractors, 618 N.E. 2d 1282, 1286
(5th Dist. 1993)
citing
People v. Fiorini, 574 N.E.2d 612, 623 (1991). However, Davinroy
also states that the owner of a pollution source is responsible for that pollution unless the facts
establish that the owner either lacked the capability to control the source or had undertaken
extensive precautions to prevent . . . other intervening causes. Davinroy, 618 N.E.2d at
1287.
The asserted affirmative defenses all present facts that, if proven true at hearing, could
establish that Chiquita lacked the capability to control the source of the pollution. As stated,
where the well-pleaded facts of an affirmative defense raise the possibility that the party
asserting them will prevail, the defense should not be stricken.
See
International Insurance,
242 Ill. App. 3d at 631. Accordingly, the motion to strike affirmative defenses is denied. As
the motion is denied, the board will not address Chiquita’s three alternative requests for relief.
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IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on April 18, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
