ILLINOIS POLLUTION CONTROL BOARD
February 6, 2003
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
MICHEL GRAIN COMPANY, Inc. a/k/a
MICHEL FERTILIZER, CARYLE MICHEL,
RONNIE TODD, and RONNIE TODD LAND
TRUST,
Respondents.
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PCB 96-143
(Enforcement – Water)
ORDER OF THE BOARD (by W.A. Marovitz):
On November 20, 2002, complainant, the People of the State of Illinois (complainant),
filed a four-count, third amended complaint against respondents, Michel Grain Company, Inc.
a/k/a Michel Fertilizer (Michel Grain) and the company’s owner and sole proprietor Caryle
Michel (Michel), and Ronnie Todd and Ronnie Todd Land Trust (collectively, Todd). Todd
filed an answer and affirmative defenses to counts III and IV on November 13, 2002. On
November 15, 2002, respondents Michel and Michel Grain filed an answer and affirmative
defenses to counts I-IV. Complainant filed two motions to strike each set of respondents’
affirmative defenses on December 20, 2002. Todd filed a response to the motion to strike on
January 13, 2003. Michel and Michel Grain filed a response to the motion to strike on January
16, 2003.
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Although Todd asks that counts I and II be dismissed as to Todd, the Board finds this
action unnecessary as counts I and II do not pertain to Todd.
For the reasons outlined below, the Board grants the motion to strike Todd’s affirmative
defenses. The Board grants the motion to strike Michel Grain and Michel’s affirmative defenses
regarding counts I and II, but does not strike the affirmative defense regarding counts III and IV.
FACILITIES
Michel Grain Company Inc. was an Illinois corporation that was involuntarily dissolved
in November 1, 1991. Third Am. Comp. at 4. Michel owned and operated Michel Grain, a
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Citations to the complaint will be “Comp. at __.” Citations to Respondents Todd’s answer will
be cited as “Todd Ans. at __.” Todd’s affirmative defenses will be cited as “Todd Aff. Def. At
__.” Citations to Respondents Michel Grain and Michel’s answer and affirmative defenses will
be “Michel Ans. at __.” Citations to complainant’s motions to strike will be “Comp. Mot. to
Strike Todd at __.” and “Comp. Mot. to Strike Michel at __.” Citations to Todd’s response will
be “Todd Resp. at __.” Citations to Michel Grain and Michel’s response will be “Michel Resp.
at __.”
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grain elevator and liquid agricultural chemical facility located in the Village of Ina, Jefferson
County (Ina facility). Third Am. Comp. at 6.
Michel also owned and operated a liquid and dry fertilizer and agrichemical facility in the
Village of Broughton, Hamilton County (Broughton facility). Third Am. Comp. at 10. The
parties agree that Michel sold Todd the Broughton facility on June 24, 1997. Third Am. Comp.
at 10, Todd Ans . at 2, Michel Ans. at 8. Todd placed the Broughton facility in the Ronnie Todd
Land Trust on July 21, 2000. Third Am. Comp. at 10, Todd Ans. at 2, Michel Ans. at 10.
Counts I and II in the complaint address the Ina facility and Michel himself. Counts III-
IV address the Broughton facility, Michel Grain, Michel and Todd.
PROCEDURAL BACKGROUND
On August 22, 2002, the Board ordered complainant to file a third amended complaint in
this matter to include the required notice to Michel Grain Company, Caryle Michel, and Ronnie
Todd regarding the consequences of failure to answer the complaint.
See
35 Ill. Adm. Code
103.204(e), (f). On September 20, 2002, complainant filed an amended four-count complaint
against respondents.
See
415 ILCS 5/31(c)(1) (2002).
Based on alleged contamination from two fertilizer and agrichemical facilities, the Ina
and Broughton facilities, complainant has alleged water pollution and land pollution violations of
the Environmental Protection Act (Act) (415 ILCS 5/12(a), (d), 21(d) (2002) and Board
regulations (35 Ill. Adm. Code 302.203, 304.106, 808.121(c)(1)).
On December 27, 1995, complainant filed the original complaint, naming only Michel
Grain and Michel as respondents. The complaint alleged water pollution violations of the Act
and Board regulations concerning pesticide and fertilizer spills at the Ina facility. Complainant’s
first amended complaint, filed on April 25, 1996, added similar allegations regarding the
Broughton facility. On October 4, 2001, complainant filed a second amended complaint, naming
Ronnie Todd as an additional respondent and alleging that he was the current owner of the
Broughton facility. On July 2, 2002, Todd filed a motion to be dismissed from this proceeding,
as the property had been transferred to the Ronnie Todd Land Trust.
On August 22, 2002, the Board denied Todd’s motion to dismiss, and ordered
complainant to file a third amended complaint in this matter to include the required notice to
Michel Grain Company, Caryle Michel, and Ronnie Todd regarding the consequences of failure
to answer the complaint. Complainant’s third amended complaint requested that the Board add
the Ronnie Todd Land Trust as a respondent. On October 3, 2002, the Board accepted the third
amended complaint.
RELEVANT STATUTORY PROVISIONS
Section 12(a) of the Act provides:
No person shall:
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Cause or threaten or allow the discharge of any contaminants
into the environment in any State so as to cause or tend to cause water
pollution in Illinois, either alone or in combination with matter from
other sources, or so as to violate regulations or standards adopted by
the Pollution Control Board under this Act.
Section 12(d) of the Act provides:
No person shall:
Deposit any contaminants upon the land in such place and manner
so as to create a water pollution hazard.
Section 21(d)(2) of the Act provides:
No person shall:
Conduct any waste-storage, waste-treatment, or waste-disposal
operation:
* * *
(2)
in violation of any regulations or standards adopted by
the Board under this Act; or
* * *
35 Ill. Adm. Code 302.203 states:
Waters of the State shall be free from sludge or bottom deposits, floating debris,
visible oil, odor, plant or algal growth, color or turbidity of other than natural
origin. The allowed mixing provisions of Section 302.102 shall not be used to
comply with the provisions of this Section.
35 Ill. Adm. Code 304.106 states:
In addition to the other requirements of this Part, no effluent shall contain
settleable solids, floating debris, visible oil, grease, scum or sludge solids. Color,
odor and turbidity must be reduced to below obvious levels.
35 Ill. Adm. Code 808.121(c)(1) states:
No person shall cause, threaten or allow the treatment, storage or disposal of
special waste in Illinois except:
(1)
At a facility permitted or otherwise authorized to manage the special waste
pursuant to 35 Ill. Adm. Code 703 or 807 (Section 21(d) and (e) of the
Act); or
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STANDARD
In an affirmative defense, the respondent alleges “new facts or arguments that, if
true, will defeat . . . [complainant’s] claim even if all allegations in the complaint are true.”
People v. Community Landfill Co., PCB 97-193, (Aug. 6, 1998). The Code of Civil Procedure
gives additional guidance on pleading affirmative defenses. Section 2-613(d) provides, in part:
The facts constituting any affirmative defense . . . and any defense which by other
affirmative matter seeks to avoid the legal effect of or defeat the cause of action
set forth in the complaint, . . . in whole or in part, and any ground or defense,
whether affirmative or not, which, if not expressly stated in the pleading, would
be likely to take the opposite party by surprise, must be plainly set forth in the
answer or reply.” 735 ILCS 5/2-613(d) (2002).
A valid affirmative defense gives color to the opposing party’s claim but then asserts new matter
which defeats an apparent right. Condon v. American Telephone and Telegraph Co., 210 Ill.
App. 3d 701, 709, 569 N.E.2d 518, 523 (2nd Dist. 1991), citing The Worner Agency Inc. v.
Doyle, 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635 (4th Dist. 1984). A motion to strike an
affirmative defense admits well-pleaded facts constituting the defense, and attacks only the legal
sufficiency of the facts. “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 Co. 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, 791 (2nd Dist. 1989).
COUNTS I and II: WATER POLLUTION – UNLAWFUL DISPOSAL OF WASTE -
VILLAGE OF INA FACILITY
In count I, complainant alleges respondents Michel Grain and Michel violated Sections
12(a) and (d) of the Act (415 ILCS 5/12(a), (d) (2002) and 35 Ill. Adm. Code 302.203 and
304.106. Third Am. Comp. at 6. Specifically, complainant alleges that an inspection on May 8,
1989, revealed that Michel Grain and Michel operated the facility in such a manner that resulted
in the discharge of pesticides, fertilizers, herbicides and fuels onto the ground and in the drainage
way. Third Am. Comp. at 4-6. By causing or allowing the discharge of these items, Michel
Grain and Michel have allegedly caused, threatened or allowed the discharge of contaminants so
as to cause or tend to cause water pollution in violation of Section 12(a) of the Act. Third Am.
Comp. at 6. By creating a water pollution hazard through the potential for runoff into waters of
the State, Michel Grain and Michel violated Section 12(d) of the Act.
In count II, complainant alleges that on or before May 8, 1989, respondents Michel Grain
and Michel caused or allowed pesticides, fertilizers and herbicides to be discarded onto the
ground at the facility. Third Am. Comp. at 9. By causing or allowing the unlawful disposal of
waste, complainant alleges respondents Michel Grain and Michel violated Section 21(d)(2) of
the Act.
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Affirmative Defense
Respondent Michel states as an affirmative defense to both counts I and II, that both
counts have been resolved because he had the property tested, and the results show no
contamination at the facility. Michel Ans. at 3 and 7.
Complainant responds that even if tests in 2001 reveal no contamination at the site,
Michel is still responsible for violations that occurred in 1989 and continued until he closed the
facility. Comp. Mot. to Strike Michel at 3.
Discussion
Michel’s affirmative defenses to counts I and II do not allege “new facts or arguments
that, if true, will defeat . . . [complainant’s] claim even if all allegations in the complaint are
true.” People v. Community Landfill Co., PCB 97-193, (Aug. 6, 1998). Even if tests show that
the Ina facility has no contamination, this does not show that no violation occurred as alleged by
complainant. The Board strikes Michel’s affirmative defenses for counts I and II. Respondents
are free to address these matters at hearing, as they are relevant to the Board’s consideration of
various factors under 33(c) and 42(h) of the Act. 415 ILCS 5/33(c), 42(h) (2002).
COUNTS III and IV – WATER POLLUTION and UNLAWFUL DISPOSAL OF WASTE
– VILLAGE OF BROUGHTON FACILITY
In count III, complainant states that Michel Grain and Michel owned and operated the
Broughton facility “for a period of time known only to respondents.” Third Am. Comp. at 10.
Complainant further states, and Todd admits, that on June 24, 1997, Michel and his wife sold the
Broughton facility to Ronnie Todd. Third Am. Comp. at 10; Todd Ans. at 2. Prior to June 24,
1997, Todd leased the facility from Michel. Third Am. Comp. at 10; Todd Ans. at 2. On
July 21, 2000, Todd put the Broughton facility property in the Ronnie Todd Land Trust (trust).
Third Am. Comp. at 10; Todd Ans. at 2.
Complainant alleges that since at least January 9, 1992, and continuing to a date known
only to respondents, respondents have caused or allowed pesticides, herbicides, fertilizers, and
fuels to contaminate soils at the facility which have contaminated water entering the drainage
way. Third Am. Comp. at 12. Complainant further alleges that since at least January 9, 1992,
and continuing to a date known only to respondents, respondents have caused or allowed the
discharge of contaminants from its facility into the drainage way so as to cause water pollution in
violation of Section 12(a) of the Act 415 ILCS 5/12(a)(2002) and 35 Ill. Adm. Code 302.203 and
304.106. Third Am. Comp. at 12. Moreover, respondents deposited contaminants on the land so
as to create a water pollution hazard in violation of Section 12(d) of the Act, 415 ILCS 5/12(d)
(2002). Third Am. Comp. at 12.
In count IV complainant alleges that on or before January 9, 1992, respondents
unlawfully disposed of waste, by causing or allowing pesticides, herbicides, fertilizers, and fuels
to be discarded upon the ground at its facility and contaminate the soils and water entering the
drainage way, in violation of Section 12(d)(2) of the Act, 415 ILCS 5/12(d)(2) (2002).
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Todd’s Affirmative Defenses
Todd argues neither Ronnie Todd nor the trust owned the property when the alleged
violations occurred. Todd Aff. Def. at 1. Todd asserts that the allegations of 12(a) and (d)
(causing or allowing discharge and contamination), occurred before either Ronnie Todd or the
trust was associated with the property. Todd Aff. Def. at 2. Todd further argues that
complainant violated Section 21(m) of the Act by not giving Todd notice that the land Todd
purchased from Michel was a waste disposal site. Todd. Aff. Def. at 3. Todd also asserts he was
a good faith purchaser of the property, citing Sections 21.3(a) and (c) of the Act (415 ILCS
5/21.3(a), (c) (2002)). Aff. Def. at 3-4. Todd also raises defenses pursuant to Section 22.2 of the
Act (415 ILCS 5/22.2 (2002)).
Complainant responds that all of Todd’s affirmative defenses are wholly conclusive and
insufficient, and they should be struck. Comp. Mot. to Strike Todd at 7. Specifically,
complainant argues that Todd, as the operator and lessee of the facility before 1997, and the
owner of the facility from 1997 to 2000, and a beneficial user of the facility since 2000,
controlled the source of pollution at the facility and has not taken precautions to prevent the
pollution from continuing. Comp. Mot. to Strike Todd at 4.
Complainant also alleges that Todd failed to provide a factual basis to show how
complainant violated Section 21(m) of the Act. Comp. Mot. to Strike Todd at 5. Complainant
alleges the claim is actually against Michel and is not an affirmative defense to the complaint.
Complainant also characterizes as premature Todd’s argument regarding being a good
faith purchaser, with no environmental lien being against the property pursuant to Section
21.3(a) and (c) of the Act. Comp. Mot. to Strike Todd at 6. Complainant states that those
sections address when the Environmental Protection Agency (Agency) should file an
environmental reclamation lien. Comp. Mot. to Strike Todd at 6. Specifically, a lien should be
filed when the Agency has incurred any removal or remedial costs at the site, which has not
occurred at this site. Comp. Mot. to Strike at 6.
Complainant also argues that as complainant has not alleged any violation of Section 22.2
of the Act, that defenses regarding Section 22.2 are not applicable in this matter. Comp. Mot. to
Strike at 7.
Todd responds that Todd did not have control over the property when the release
occurred, nor knowledge of what the complained of release is. Todd Resp. at 2.
Discussion
Neither Section 12(a) or (d) require that the person liable for the contamination be the
owner or operator of the contaminated property. So, Todd’s assertion that the allegations of
12(a) and (d) (causing or allowing discharge and contamination) occurred before either Ronnie
Todd or the trust was associated with the property, is not an appropriate affirmative defense. The
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affirmative defense does not allege new facts or arguments that, if true, will defeat complainant’s
claim even if all allegations in the complaint are true. The Board strikes the affirmative defense
Todd’s assertion that complainant violated Section 21(m) of the Act by not giving Todd
notice that the land Todd purchased from Michel was a waste disposal site, is an allegation that
may be appropriate for a cross-complaint, but it is not an affirmative defense. The Board strikes
the affirmative defense.
The Board previously addressed Todd’s Section 22 arguments in the context of denying
his previous motion to dismiss. People v. Michel Grain Company Inc., PCB 96-143, (Aug. 22,
2002) at 4. Todd’s allegation that he was a good faith purchaser of the property does not prevent
the Board from finding a violation of the Act. The affirmative defense does not allege new facts
or arguments that, if true, will defeat complainant’s claim even if all allegations in the complaint
are true. The Board strikes the affirmative defense.
Regarding Todd’s allegation that Section 22.2(j) of the Act provides an exemption for
liability, the Board agrees with complainant that complainant has not alleged liability under
Section 22.2. By its terms, Section 22.2(j) only applies to cases brought under Section 22.2.
Any affirmative defense that Section 22.2(j) provides is not relevant to this matter, because
complainant alleged only violations of factors existed that were substantially and significantly
different from those relied upon by the Board when it adopted the regulation prohibiting open
burning Sections 12(a) and (d), not Section 22.2. The Board strikes the affirmative defense.
Michel’s Affirmative Defenses
As to both count III and IV, Michel asserts that he never operated a liquid chemical
operation at the Broughton facility. Michel Ans. at 10, 14. Michel claims he purchased the
Broughton facility from a bank, and the site may have previously contained a liquid chemical
operation. Michel Ans. at 10, 14. Michel asserts he rented the facility to Todd and had no
control over the facility at that time. Michel Ans. at 10-11, 14.
Complainant states that as owner of the property from at least 1992 to 1997, Michel had
the capability of control over the pollution source at the facility, and he has not taken any
necessary precautions to prevent the pollution from continuing. Comp. Mot. to Strike Michel at
4.
Discussion
The Board has previously refused to strike affirmative defenses regarding lack of ability
to control the alleged pollution source. As the Board stated in Chiquita People v. Chiquita
Processed Foods, L.L.C., PCB 02-56 (Apr. 18, 2002), the test it applies in determining whether
an alleged polluter has violated the 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). Additionally,
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
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undertaken extensive precautions to prevent . . . other intervening causes.” Davinroy, 618
N.E.2d at 1287. 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.
Although Michel does not deny owning the site, because Michel may be able to prove
that he lacked the capability to control the pollution source, the Board will not strike this
affirmative defense.
CONCLUSION
In sum, the Board grants the motion to strike Todd’s affirmative defenses. The Board
grants the motion to strike Michel Grain and Michel’s affirmative defenses regarding counts I
and II, but does not strike the affirmative defense regarding counts III and IV.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
order was adopted on February 6, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
