ILLINOIS POLLUTION CONTROL BOARD

November

20, 1986

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 86—38

WILLIAMS PIPELINE COMPANY,

)

Respondent.

ORDER OF THE BOARD

(by R.

C.

Flemal):

This matter comes before

the Board

upon the October

14, 1986

motion of the

Illinois Environmental Protection Agency (“Agency”)

to strike the affirmative defenses raised by Williams Pipeline

Company (“WPL”)

in the latter’s September 8,

1986

filing.

WPL

responded

in opposition

to the Agency’s motion

to strike on

October

20,

1986.

The first affirmative defense raised by WPL

is that the

Board

lacks subject matter jurisdiction over the claims made

in

14 Counts of the Complaint, due

to the Agency’s alleged

failure

to provide preenforcement notice of those claims.

Respondent’s

second affirmative defense

is that

38 Counts of the Complaint

fail to

state

a claim upon which relief may be granted due

to

alleged pleading infirmities on

the part of the Agency.

The

third affirmative defense raised by WPL is that Agency reports

indicate

that some or

all of the alleged discharges from WPL’s

pipeline had

no effect on waters of the State.

None

of

these

three

defenses

are

raised

in

the

form

of

motions

to

dismiss

or

strike

all

or

portions

of

the

Agency

Complaint;

rather,

they

are

simply

submitted

in

response

to

the

Complaint.

These defenses involve questions that are mixed

questions of fact and are most

suited

to being

answered

at

hearing.

The

Board therefore believes it inappropriate to strike

the defenses and hereby denies the Agency’s October

14,

1986

motion as

to WPL’s

first,

second, and third affirmative defenses.

The fourth affirmative defense raised by WPL is not an

affirmative defense at all,

but rather

is

a reservation of the

right to amend

its answer

and

raise additional

affirmative

defenses

if such defenses “become available,

arise,

or appear”

during

discovery

as

it

proceeds

in

this

matter.

The

Agency

objects

to

the

assertion

of

this

defense,

which

the

Agency

views

as an opportunity for WPL

to later

“assert a defense which

(WPL)

may currently have

a basis

to raise but simply has

failed

to

allege”.

If WPL was refraining

from asserting

a defense already

known

to

it,

the Agency’s objection might have some persuasive

merit.

WPL’s

fourth

affirmative

defense,

however,

goes

to

the

74.97

---

—2—

possible advocacy of defenses which

WPL

is currently unaware.

As

such,

the Board does not believe

it appropriate to strike WPL’s

fourth affirmative defense.

The Agency’s October 14,

1986 motion

to strike as it relates to WPL’s fourth affirmative defense is

consequently denied, that motion thereby being denied

in

toto.

IT IS SO ORDERED.

Board Members Joan Anderson and Jacob

D.

Dumelle concurred.

I, Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the aboye Order was adopted on

the

___________________

day of

77..~i-c~

,

1986, by a vote

of

(cC

.

/~

—

~

Li,.

~

Dorothy

M.

Gunn,

Clerk

Illinois Pollution Control

Board