ILLINOIS POLLUTION CONTROL BOARD
October 2, 1997
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
GEON COMPANY, INC.,
Respondent.
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PCB 97-62
(Enforcement - Air)
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on an amended complaint filed April 10, 1997, by the
Attorney General’s Office on behalf of the People of the State of Illinois (complainant). The
complaint alleges that, in addition to the original release of monomer vinyl chloride on
November 8, 1995, another release of monomer vinyl chloride occurred on September 28,
1996, which resulted in three violations of the Environmental Protection Act (Act). On June
19, 1997, Geon Company, Inc. (Geon)
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filed its answer and affirmative defenses (Ans.).
On July 11, 1997, complainant filed a motion to strike affirmative defenses. On July
29, 1997, Geon filed a motion to dismiss the amended complaint or, in the alternative, a
memorandum in opposition to the motion to strike affirmative defenses. On August 12, 1997,
complainant filed an objection to Geon’s motion to dismiss the amended complaint, and a
response to Geon’s memorandum in opposition to the motion to strike affirmative defenses
(Obj.).
Also, on July 25, 1997, complainant filed a motion to file a second amended complaint
and a second amended complaint, and Geon filed a motion for extension of time to respond.
By order dated July 31, 1997, Chief Hearing Officer Michael L. Wallace stated that these
motions would be held until the Board issues an order regarding the motion to strike
affirmative defenses and Geon’s motion to dismiss.
For the reasons stated below, the Board denies complainant’s motion to strike
affirmative defenses as to Geon’s first, second, and third affirmative defenses and grants the
motion to strike as to Geon’s fourth and fifth affirmative defenses. The Board also accepts
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The Board notes that respondent’s correct name is Geon Company, Inc., not Geon
Corporation as prior captions have indicated. Respondent’s correct name is reflected in this
order and will be so indicated in all future orders.
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Geon’s motion to dismiss the amended complaint, but declines to dismiss the amended
complaint.
BACKGROUND
Geon operates a chemical plant located at Rural Route 1, Henry, Marshall County,
Illinois, which manufactures polyvinyl chloride. Complaint at 2. On September 20, 1996,
complainant, on behalf of the Illinois Environmental Protection Agency (Agency), filed a
three-count complaint pursuant to Section 31(a) of the Act, after notice and opportunity to
meet with the Agency was provided pursuant to Section 31(d) of the Act. 415 ILCS 5/31(a)
and 31(d) (1994). The complaint alleged violations of Section 9(a), 9.1(d)(1), and 9(b) of the
Act (415 ILCS 5/9(a), 9.1(d)(1), 9(b) (1994)), 35 Ill. Adm. Code 201.141, 42 U.S.C.
§
7412(i)(3) (1993), 40 C.F.R. 61.45(a) (1993), and Special Conditions 3(b) and 3(c) of
Operating Permit No. 73050009 for a release of 3,737 pounds of monomer vinyl chloride
which occurred on November 8, 1995.
On April 8, 1997, complainant, on behalf of the People of the State of Illinois, filed a
motion for leave to file amended complaint and amended complaint. This motion was granted
by hearing officer order dated May 21, 1997. The amended complaint realleges the
allegations contained in the original complaint and adds additional allegations related to a
release of monomer vinyl chloride at respondent’s facility on September 28, 1996. On July 7,
1997, over six weeks after the amended complaint was filed, the Agency sent Geon a Notice
of Intent to Pursue Legal Action which included an offer to meet with the Agency to resolve
the allegations involving the September 28, 1996 release.
On July 9, 1997, complainant filed its motion to strike affirmative defenses and on July
29, 1997, Geon filed its motion to dismiss the amended complaint and its memorandum in
opposition to the motion to strike affirmative defenses. The Board will present first the
arguments regarding the affirmative defenses and then the arguments regarding the motion to
dismiss the amended complaint.
AFFIRMATIVE DEFENSES
In its first affirmative defense, Geon argues that complainant improperly split a single
cause of action into three causes of action in an attempt to inflate the penalties it seeks from
Geon. Ans. at 9-10. Geon asserts in its second affirmative defense that the release which
occurred on November 8, 1995, and September 28, 1996, were not injurious to human, plant
or animal life, to health or to property, nor did they unreasonably interfere with the enjoyment
of life and property; therefore, the releases do not constitute “air pollution” as defined by the
Act. Ans. at 10. In its third affirmative defense, Geon argues that the November 8, 1995
release was not preventable in that, without Geon’s knowledge, Geon’s contractor removed
and improperly replaced a component of the rupture disk assembly, the equipment where the
release occurred. Regarding the September 28, 1996 release, Geon states that the release
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occurred due to mechanical failure beyond Geon’s control and therefore also was not
preventable. Ans. at 10-11.
Geon argues in its fourth affirmative defense that, if held responsible for any alleged
violations, any relief granted is subject to mitigation based upon: an absence of willfulness
and Geon’s pattern of cooperation with the Agency; Geon’s good faith efforts to control vinyl
chloride releases; the lack of any economic benefit gained by Geon as a result of the releases;
the
de minimus
and isolated nature of the releases; the lack of a significant adverse impact on
air quality; and the lack of any prior adjudicated violations of the Act or its operating permit
by Geon. Ans. at 11-12. Finally, in its fifth affirmative defense, Geon asserts that
complainant is not entitled to attorney fees and costs because the violations were not willful,
knowing, or repeated. Ans. at 12.
Motion to Strike Affirmative Defenses
In its motion to strike (Mot.), complainant responds to the first affirmative defense by
asserting that three causes of action are alleged because three violations of the Act occurred
from each release; therefore, Geon’s first affirmative defense fails because it states a legal
conclusion. Mot. at 2. Geon’s second affirmative defense, that no injury resulted from the
releases, is a legal conclusion unsupported by fact and complainant argues that it should
therefore be dismissed. In addition, complainant states, the statutory prohibition in Section
9(a) of the Act does not require a finding of injury or unreasonable interference in order for a
violation to occur. Mot. at 3. Complainant states that the third affirmative defense is an
admission of improper operation of equipment. Since Geon remained in control of the source
from which the release occurred, Geon remains responsible for preventing releases from
occurring, even if the release was caused by one of its contractors. Therefore, Geon’s third
affirmative defense should be stricken as well. Mot. at 5.
Complainant argues that Geon’s fourth affirmative defense does not constitute an
affirmative defense because the arguments revolve around the question of mitigation, not
whether a violation occurred. Mot. at 7. Finally, complainant argues that Geon’s fifth
affirmative defense, the claim that complainant is not entitled to attorney fees, is not an
affirmative defense and should therefore be stricken. Complainant notes that the factors
considered by the Board in awarding attorney fees will not be known until after a hearing is
held. Mot. at 7.
Discussion
Although the Board notes that Geon’s affirmative defenses filed in response to the
amended complaint, and complainant’s arguments in its motion to strike the affirmative
defenses, are substantially similar to those filed in response to the original complaint, the
Board finds it prudent to revisit the issues, in light of recent Board orders regarding
affirmative defenses.
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Complainant argues that Geon’s first three affirmative defenses are based on legal
conclusions only, and that no facts were provided in support of these claims. The Board
disagrees. Geon provided facts to support its claims that the amended complaint improperly
split a single cause of action, that the alleged releases did not harm human health or the
environment, and that the release occurred due to a mechanical failure beyond Geon’s control.
The fact that these pleadings include legal conclusions does not serve to defeat them as
affirmative defenses. As the Board has previously stated, allowance of liberal pleading of
defenses serves to inform parties of the legal theories to be presented by their opponents,
prevents confusion as to whether a defense has been waived as not timely raised, and avoids
taking an opponent by surprise later in the proceedings. People v. Midwest Grain Products of
Illinois, Inc. (August 21, 1997), PCB 97-179, slip op. at 4. Therefore, the Board declines to
strike Geon’s first three affirmative defenses.
The Board in recent rulings has determined that an affirmative defense concerning
factors in mitigation with regard to any penalty that may be assessed in this matter, is not an
appropriate affirmative defense to a claim that a violation has occurred. People v. Midwest
Grain Products of Illinois, Inc. (August 21, 1997), PCB 97-179, slip op. at 5; People v.
Douglas Furniture of California, Inc. (May 1, 1997), PCB 97-133, slip op. at 6. Since
Geon’s fourth affirmative defense speaks to the imposition of a penalty rather than the
underlying allegations in this cause of action, the Board will strike it as improper. The Board
reminds the parties that Geon is not precluded from introducing at hearing evidence regarding
such mitigation factors.
Similarly, the Board has previously ruled that an affirmative defense based on whether
a respondent should pay complainant’s attorney fees and costs addresses the issue of penalty,
not the underlying cause. Douglas Furniture, PCB 97-133, slip op. at 6. Therefore, Geon’s
fifth affirmative defense is stricken as improper. Again, Geon can raise this argument at
hearing for purposes of arguing the appropriateness of any penalty to be imposed in this
matter.
MOTION TO DISMISS AMENDED COMPLAINT
In its motion to dismiss the amended complaint (Mot. to Dism.), Geon first
acknowledges that its motion was not filed within 14 days of receiving the amended complaint,
but requests the Board to accept this filing, otherwise Geon would be materially prejudiced.
Mot. to Dism. at 1. Geon next argues that the amended complaint should be dismissed
because complainant failed to comply with Section 31(b) of the Act. Specifically, Geon argues
that newly amended Section 31(a) and (b) of the Act, which became effective August 1, 1996,
requires the Agency, prior to referring a matter to the Attorney General’s Office, to issue and
serve upon the person complained against a written notice that the Agency intends to pursue
legal action. In addition, the Agency must offer that person an opportunity to meet with the
Agency to attempt to resolve any alleged violations. Mot. to Dism. at 4.
Geon notes that the Agency issued a Notice of Intent to Pursue Legal Action and
offered a meeting to resolve the alleged violations of the Act resulting from the September 28,
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1996 release. However, Geon asserts that the Notice of Intent to Pursue Legal Action was
sent after the amended complaint was filed. Citing People of the State of Illinois v. American
Waste Processing, Ltd. (January 23, 1997), PCB 96-264, People v. Clark Refining &
Marketing, Inc. (September 7, 1995), PCB 95-163, and People v. Chicago Heights Refuse
Depot, Inc. (October 10, 1991), PCB 90-112, Geon contends that the express language and
purpose of Section 31(b) is to promote resolution of matters prior to taking formal legal action,
and cites to several Board cases in support of its contention. Mot. to Dism. at 5.
Alternatively, Geon again urges the Board to deny complainant’s motion to strike
affirmative defenses as duplicitous of complainant’s motion to strike addressed in the Board’s
January 7, 1997, order. Mot. to Dism. at 6.
Complainant’s Objection to Geon’s Motion to Dismiss
Complainant first objects to Geon’s motion to dismiss, arguing that it is untimely in
that Geon filed its motion 98 days beyond the due date for such filings. Obj. at 2.
Complainant also argues that Geon failed to file a motion requesting leave to file its motion to
dismiss, as required by Section 2-609 of the Illinois Code of Civil Procedure (735 ILCS 5/2-
609 (1996)) which states that there is no absolute right to file supplemental pleadings, and
allowance of same is discretionary. Obj. at 5.
Complainant further argues that Geon will not be materially prejudiced if its motion to
dismiss is denied. Contrary to Geon’s representation that the amended complaint was filed on
behalf of the Agency, complainant states that the amended complaint was filed on the motion
of the Attorney General’s Office alone. As such, the notice requirements in Section 31(b) of
the Act do not apply to the amended complaint. Therefore, no jurisdictional issue exists and
Geon’s motion to dismiss should be denied.
STATUTORY FRAMEWORK
The following is the pertinent language from Section 31 of the Act as it appeared
before the recent amendments of Public Act 89-596.
Section 31 of the Act prior to Public Act 89-596:
(a)(1)
If such investigation discloses that a violation may exist, the Agency
shall issue and serve upon the person complained against a written
notice, together with a formal complaint, which shall specify the
provision of this law or the rule or regulation or permit or term or
condition thereof under which such person is said to be in violation, and
a statement of the manner in, and the extent to which, such person is
said to violate this law or such rule or regulation or permit or term or
condition thereof and shall require the person so complained against to
answer the charges of such formal complaint at a hearing before the
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Board at a time not less than 21 days after the date of notice by the
Board, except as provided in Section 34 of this Act.
* * *
(d)(1)
Notwithstanding the provisions of subsection (a) of this Section, prior to
issuance and service of a written notice and formal complaint under
subsection (a) of this Section, the Agency shall issue and serve upon the
person complained against a written notice informing such person that
the Agency intends to file a formal complaint. Such written notice shall
notify the person of the charges alleged and offer the person an
opportunity to meet with appropriate agency personnel in an effort to
resolve such conflicts which could lead to the filing of a formal
complaint. Such meeting shall be held within 30 days of receipt of
notice by the person complained against unless the Agency agrees to a
postponement, or the person complained against fails to respond to the
notice or such person notifies the Agency that he will not appear at a
meeting. Nothing in this subsection is intended to preclude the Agency
from following the provisions of subsection (a) of this Section after the
provisions of this subsection are fulfilled.
* * *
After Public Act 89-596 was enacted, Section 31 of the Act states in pertinent part:
(a)(1)
Within 180 days of becoming aware of an alleged violation of the Act or
any rule adopted under the Act or of a permit granted by the Agency or
condition of the permit, the Agency shall issue and serve, by certified
mail, upon the person complained against a written notice informing that
person that the Agency has evidence of the alleged violation. At a
minimum, the written notice shall contain:
* * *
(b)
For alleged violations that remain the subject of disagreement between
the Agency and the person complained against following fulfillment of
the requirements of subsection (a) of this Section, and as a precondition
to the Agency's referral or request to the Office of the Illinois Attorney
General or the State's Attorney of the county in which the alleged
violation occurred for legal representation regarding an alleged violation
that may be addressed pursuant to subsection (c) or (d) of this Section or
pursuant to Section 42 of this Act (415 ILCS 5/42), the Agency shall
issue and serve, by certified mail, upon the person complained against a
written notice informing that person that the Agency intends to pursue
legal action.
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* * *
(c)(1)
For alleged violations which remain the subject of disagreement between
the Agency and the person complained against following waiver,
pursuant to subdivision (10) of subsection (a) of this Section, or
fulfillment of the requirements of subsections (a) and (b) of this Section,
the Office of the Illinois Attorney General or the State's Attorney of the
county in which the alleged violation occurred shall issue and serve upon
the person complained against a written notice, together with a formal
complaint, which shall specify the provision of the Act or the rule or
regulation or permit or term or condition thereof under which such
person is said to be in violation, and a statement of the manner in, and
the extent to which such person is said to violate the Act or such rule or
regulation or permit or term or condition thereof and shall require the
person so complained against to answer the charges of such formal
complaint at a hearing before the Board at a time not less than 21 days
after the date of notice by the Board, except as provided in Section 34 of
this Act (415 ILCS 5/34). Such complaint shall be accompanied by a
notification to the defendant that financing may be available, through the
Illinois Environmental Facilities Financing Act (20 ILCS 3515/1 et
seq.), to correct such violation.
* * *
(d)
Any person may file with the Board a complaint, meeting the
requirements of subsection (c) of this Section, against any person
allegedly violating this act or any rule or regulations thereunder or any
permit or term or condition thereof. The complaint shall immediately
serve a copy of such complaint upon the person or persons named
therein. Unless the Board determines that such complaint is duplicitous
or frivolous, it shall schedule a hearing and serve written notice thereof
upon the person or persons named therein, in accord with subsection (c)
of this Section.
Discussion
Timeliness of Geon’s Motion to Dismiss Amended Complaint
Complainant maintains that Geon’s motion to dismiss should be denied as untimely
filed because it was filed later than 14 days after the amended complaint was filed. Pursuant
to 35 Ill. Adm. Code 103.140(a), in enforcement actions, “[a]ll motions by respondent to
dismiss or strike the complaint or challenging the jurisdiction of the Board shall be filed within
14 days after receipt of complaint.” However, the Board may exercise its discretion to
consider a motion filed after the 14-day time period, pursuant to Section 101.243(b) which
provides that “[a]ll motions challenging the jurisdiction of the Board shall be filed prior to the
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filing of any other document by the moving party, unless the Board determines that material
prejudice will result.” 35 Ill. Adm. Code 101.243.
In the instant matter, complainant filed its amended complaint on April 10, 1997.
Geon’s motion to dismiss, which challenges the amended complaint on jurisdictional grounds,
was filed on July 29, 1997, well past the 14-day time period for such responses but prior to the
filing of any other document regarding the amended complaint. The Board believes that
material prejudice would result if Geon were denied an opportunity to challenge the amended
complaint on jurisdictional grounds and therefore declines to dismiss Geon’s motion to dismiss
the amended complaint.
Geon’s Motion to Dismiss Amended Complaint
Geon has challenged the amended complaint based on the Agency’s failure to provide
the notice required under new Section 31(a) and (b) prior to its filing. Section 31 of the Act
sets forth certain procedural and notice requirements applicable to the environmental
enforcement process. Prior to August 1, 1996, Section 31(d) required that the Agency issue
and serve a notice of violation letter on respondents prior to the filing of a complaint for
enforcement. See 415 ILCS 5/31(d) (1994). The purpose of the Section 31(d) letter was two-
fold: (1) to notify the person complained against of the charges alleged, and (2) to offer the
person complained against an opportunity to meet with appropriate Agency personnel in an
effort to resolve the conflict.
By legislative amendment effective August 1, 1996, Section 31 was modified. See 415
ILCS 5/31 (1996). Instead of requiring the old Section 31(d) letter as a precondition to the
filing of the complaint, revised Section 31 now sets forth a specific time-driven procedure that
the Agency must follow when it discovers a potential violation. Compliance with the new
procedures outlined in Section 31 is a precondition to the Agency’s referral to the Attorney
General’s Office for enforcement. See 415 ILCS 5/31(b) (1996).
Specifically, the new law requires that, prior to the Agency’s referral to the Attorney
General’s Office or State’s Attorney for prosecution, certain notices be given to provide for an
opportunity to meet with the Agency. First, Section 31(a) of the new law requires that, within
180 days of becoming aware of an alleged violation, the Agency must serve the alleged
violator with a written notice containing very specific information about the alleged violations.
See 415 ILCS 5/31(a) (1996). Once received, this “evidence of violation notice” initiates a
series of opportunities for the alleged violator to meet with the Agency in an attempt to resolve
the problem. See 415 ILCS 5/31(a) (1996). If no satisfactory resolution is achieved, and the
Agency wishes to pursue legal action, Section 31(b) requires that the Agency serve a written
notice on the person informing him of this intention and extend another opportunity to meet
with the Agency prior to any referral of the matter to the Attorney General’s Office or State’s
Attorney for enforcement. See 415 ILCS 5/31(b) (1996). Under the new law, these notices
are a precondition to the Agency’s referral of a matter to the Attorney General’s Office or
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State’s Attorney-- Section 31 no longer contains a specific precondition to the filing of a
complaint, however.
Thus, with the August 1996 amendments to Section 31 the legislature sought to “clarify
the procedure where the IEPA and potential violators of the Environmental Protection Act
work together in an effort to resolve potential violations of the Act.” 89th Gen. Assem.
House Proceedings, March 25, 1996 at 101 (statements of Representative Persico
)
. The
clarification “encourages dispute resolution [and] establishes reasonable time limits for the
exchange of communication” (see 89th Gen. Assem. House Proceedings, March 25, 1996 at
102 (statements of Representative Persico)) between the alleged violator and the Agency.
Such exchange of communication, however, was clearly designed to occur outside the presence
of the Attorney General.
In the instant matter, Geon admitted in its November 1, 1996 answer that the complaint
was brought pursuant to former Section 31(a) of the Act after the Agency provided notice and
opportunity for a meeting, pursuant to former Section 31(d) of the Act. Ans. at 2. Thus,
there is no question that the original complaint is properly before the Board. Geon argues that
the amended complaint, filed after August 1, 1996, is improperly before the Board because the
Agency did not provide notice pursuant to the new Section 31(a) and 31(b) notice
requirements.
Complainant responds that the amended complaint was filed on the Attorney General’s
own motion, not on behalf of the Agency. Complainant asserts that the notice requirements of
new Section 31 of the Act only apply to the Agency and are not applicable to enforcement
actions brought solely by the Attorney General’s Office. Therefore, since the notice
requirements of new Section 31 of the Act only apply to the Agency, complainant argues that
the amended complaint is properly before the Board, and it therefore should not be dismissed.
The Board agrees with complainant’s assessment that the Attorney General’s Office is
not subject to the requirements of new Section 31(a) and (b) of the Act. Indeed, the legislature
did not intend to undermine the Attorney General’s authority to prosecute on its own behalf, as
demonstrated by Senator Fawell’s statements in the Senate debates regarding the amendements
to Section 31:
“[The proposed legislation] helps promote mutually agreed resolutions without
resorting to litigation when there is a contaminated site. Does not hinder the
Attorney General or the State’s attorneys from instigating their own
enforcement action independent of the IEA {sic} (IEPA), but it is a bill which,
hopefully, will stop a lot of litigation.” 89th Gen. Assem. Senate Proceedings,
May 8, 1996 at 87 (statements by Senator Fawell).
The Board finds that in the instant matter, the Attorney General’s Office can bring an
amended complaint, pursuant to new Section 31(d) of the Act (415 ILCS 5/31(d) (1996)) on
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behalf of the People of the State of Illinois. The Board therefore declines to dismiss the
amended complaint in this matter.
Second Amended Complaint
As previously stated, on July 25, 1997, complainant filed a motion to file a second
amended complaint and a second amended complaint. By hearing officer order dated July 31,
1997, this motion, as well as any response, were held until the Board ruled on the pending
motions regarding affirmative defenses and the amended complaint. Since this order disposes
of such motions, the Board directs the hearing officer to set a new schedule for Geon’s
response to the motion for leave to file a second amended complaint, and for complainant’s
reply.
CONCLUSION
For the above-stated reasons, the Board denies complainant’s motion to strike
affirmative defenses as to Geon’s first, second, and third affirmative defenses and grants the
motion to strike as to Geon’s fourth and fifth affirmative defenses. The Board accepts Geon’s
motion to dismiss the amended complaint but declines to dismiss the amended complaint.
Finally, the Board directs the hearing officer to set a new schedule for Geon’s response to the
motion for leave to file a second amended complaint, and for complainant’s reply.
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 2nd day of October 1997, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
