BEFORE
THE ILLll~lOISPOLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
CLERK’S OFFfc~p
~omp1amants,
)
)
PCB#01-07
JUL
312003
vs.
)
(Enforcement-Air)
STATE
OF ILLINOIS
QC FINTSHERS,
INC., an Illinois Corporation,)
POIIUtIOfl
Control Board
Respondent.
-
)
NOTICE OF FILING
To:
Ms. Paula Becker Wheeler
Assistant
Attorney General
Office ofthe Attorney General
188 West Randolph Street, 20th Floor
Chicago, Illinois
60601
Clerk, Illinois Pollution Control Board
100 W. Randolph Street
State ofIllinois Center
Suite 11-500
Chicago, Illinois
60601
Mr. BradleyHalloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center,
Suite 11-500
100 W. Randolph Street
Chicago, Illinois
60601
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the original and nine copies ofa MOTION FOR
RECONSIDERATION OF BOARD ORDER on behalf of QC Finishers,
Inc., a copy of
which is hereby served upon you.
Respectfully submitted,
Heidi E. Hanson
Dated
July 29, 2003
Heidi E. Hanson
H. E. Hanson, Esq.
P.C.
4721
Franklin Aye, Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
PEOPLE OF THE STATE OF ILLINOIS,
)
CLJTR~~
~~~‘r’
)
JUL
3
1
2003
Complainant,
)
)
PBC # 01-07
STAlE OF ILLINOIS
vs.
)
(Enforcement-Air)
pollution
Control
Board
)
Q
C FINTSHERS, INC., an Illinois Corporation,)
)
Respondent.
)
MOTION FOR RECONSIDERATION OF BOARD
ORDER
NOW COMES Respondent,
QC Finishers, Inc., by and through its attorney, H. E.
Hanson Esq. P.C.
and moves the Board for reconsideration ofits June
19, 2003 order in
this matter pursuant to 35
III. Adm.
Code
101.520.
In support thereofRespondent states
as follows:
The Board’s order granted in part Complainant’s Motion to
Strike several of
Respondent’s Affirmative Defenses.
Respondent received the Board’s order on June 24,
2003.
First General Affirmative Defense
-
Laches
Respondent’s affirmative defense oflaches sets forth in 26 paragraphs that the
state had failed to exercise due diligence in pursing its right to enforce the Act.
In
addition, special circumstances existed in that Respondent was part ofa small,
easily
discernible, group that the IEPA had a duty to communicate with.
IEPA was aware that
suchcommunication would aid the in enforcement ofthe Act and yet delayed
in such
communication
-
to Respondent’s detriment.
The Board dismissed the affirmative defense on the ground that Respondent had
“not sufficiently pled that the People unreasonably delayed in bringing this action.” and
that respondent did not allege that there was a delay in bringing the suit”.
The two
elements oflaches as stated in the Board’s order are lack ofdue diligence
by the partyasserting the claimand prejudice to the opposing party.
The first element has
also been described by the Board as “delay in asserting a right”.
People v.
Stein Steel
Mills Service, Inc.,. PCB 02-1 page 5 (April
18, 2002).
People v. John Crane, Inc.
PCB
01-76 page 8 (May
17, 2001).
A “right” may be broaderthan a lawsuit.
The state has a right to require permits.
It has the right to require emission controls.
It can assert those rights in ways other than
1
bringing suit.
It can assert them through oral or written communications.
(See People v.
John Crane, PCB 0 1-76 in which the Board sustained an affirmative defense that plead
laches in the basis that ofthe Agency’s “failure to file its NOV on a timely basis.”)
It is the delay in such communication that
is complained ofin paragraphs 6 through
13,
16 through 21, and 24 through 26 ofthe defense.
Failure to plead a late lawsuit
should not defeat this affirmative defense.
Respondent has pled that the People delayed in
asserting a right.
WHEREFORE Respondent requests that this affirmative defense be reinstated.
Second
General Affirmative Defense
-
Estoppel
The Board struck the affirmative defense ofestoppel citing the fact that respondent
had not alleged that any individual acting on behalfofthe state misrepresented or
concealed a material fact and that there must be an affirmative act by the state to induce
reliance.
The authority cited was a 1998 case in the First District.
Elson v.
State farm
Fire and Casualty Company
295
Ii. App.
3d
1, 691, N. B. 2d 807, (1st Dist..
1998).
The Illinois Supreme Court had recently discussed estoppel in Geddes et al v. Mill
Creek Country Club, Inc.
eta!.
196 Ill. 2d 302,751 N. E. 2d
1150, 256 Ill. Dec. 313
(IL S.
Ct. May 24, 2001.
It cited with approvalthe statement in an earlier case that “estoppel
may arise from silence as well as words...It is the duty ofa personhaving a right and
seeing another about to commit an act infringing on it to assert its right.”
The Geddes
case
is discussed in greater detail in the Response to Motion to Dismiss Affirmative
Defenses pages
3
and 4.
The Supreme Court has found in essence that the elements ofestoppel cited in
Elson no
longer represent the law in Illinois.
Analyzing
Q
C Finishers defense against the standard articulated in Geddes will
reveal that Respondent has sufficiently pled the relevant elements ofestoppel.
The state
by its
silence induced Respondent to rely on the statements ofthe Cook County inspector
who told
Q
C Finishers that it was in compliance.
Q
C Finishers additionally relied on the
silence ofthe state and took no further action and was thereby prejudiced.
Therefore as
matter ofequity the state should not be heard to complain ofthe noncompliance that was
caused
in part by its own silence in the face ofits
duty to act.
WHEREFORE the Board should reinstate this affirmative
defense.
2
Fourth General Affirmative Defense
-
Waiver
The board struck Respondent’s fourth general defense on two grounds.
First, it held that, based on the same
1975 court case cited by Complainant, that
waiver requires an intentional relinquishment ofa known right.
TheBoard however has
held, much more recently in People v. Douglas Furniture, PCB 97-133, Ill ENY LEXIS 22
*
10 (May 1,
1997) that
“the doctrine ofwaiver applies when a party intentionally
relinquishes a known right or conduct warrants an inference ofsuch relinquishment”
(emphasis added).
Q
C Finishers defense invoked the second clause.
In
Q
C Finishers
case the conduct ofthe JEPA warranted the
inference that it did not intend to pursue
Q
C
Finishers.
It knew that “distribution ofinformation to the individual smaller users was
necessary to obtain greater compliance” and it did nothing.
(See Answer and Affirmative
Defenses paragraphs
10,
11
and
16 through 18).
Second, with regard to the
issue ofwhether this defense speaks to penalties, the
Respondent respectfully directs the Board to the first affirmative defense raised in Douglas
Furniture.
In that defense Douglas Furniture pled that the penalty sought was
“unreasonably high”.
Q
C Finishers defense is distinguishable from the defense raised in
Douglas Furniture.
Q
C Finishers defense goes not to the magnitude ofthe penalty but to
Complainant’s right to pursue it.
The defense, paragraph 26, states that “Complainant’s
failure to take action in the above-referenced circumstances constitutes
a waiver ofits
right to pursue penalties and costs.”
(emphasis added).
Because it goes to the right to
pursue the cause ofaction, rather than the amount ofpenalty, it is an appropriate
affirmative defense.
WHEREFORE Respondent asksthe Board to reinstate this affirmative defense.
Specific Affirmative Defense to Count III
Count III, paragraphs 11
&
12, alleges violations beginning in
1991
and continuing
through the present.
Complainant alleged that Respondent used coatings that exceeded
the emission limits of35 III Adm. Code 218.204.
Respondent’s affirmative defense pled that it had installed control equipment and
thereby was no longer subject to 218.204.
Notably it did not plead that it had stopped
using coatings that
exceeded the emission limits.
In its Response to the Motion to Strike, Respondent noted (pg. 7) that the factthat
compliance had beenachieved was not being offered to mitigate a violation.
It was being
offered to
show that during the last four years ofthe alleged violation, use ofcoatings that
exceeded the emission limits was not a violationbecause the emissions were being
controlled.
3
In this analysis it is instructive to consider the allegation in two parts:
1)
Period One, (before controls were used) and
2)
Period Two (from the use ofcontrols to the present).
Both the Motion to Dismiss and the Board’s Order assumed that the affirmative
defense was applicable only to Period
One.
While the fact that compliance was ultimately
achieved can, and will, be raised in mitigation if the Board finds violations in Period One,
that
is not the
issue here.
Respondent’s Affirmative Defense is a defense only to Period Two.
The Affirmative Defense is valid and appropriate for Period Two because it
addresses new facts outside the Complaint, specifically that Respondent is exempt from
the emissions limits of218.204 because it is now regulated by 35 III Adm..
Code 218.207.
Respondent could not have conveyed this information simply by responding to the
alleged violation of2l8.204.
Since this information was outside the scope ofthe
Complaint it was properly raised as an affirmative defense for Period
Two.
The fact that compliance with the Boards’ rules was achieved by a mechanism
other than stopping the conduct complained ofin Count III, brings out “new facts or
arguments that, iftrue,
will defeat
Complainants
claim even ifall allegations in the
complaint are true.”
People v.
Community Landfill Co., PCB 97-193, (Aug. 6,
1998).
WHEREFORE Respondent asks the Board to reconsider its order strildng the affirmative
defense or in the alternative to clarity that Respondent is not foreclosed from raising the
fact that its compliance with 35 Ill.
Adm.
Code 2 18.207 can be used to prove that there
was no violation of218.204 from the date controls were installed to the present.
First Affirmative Defense to Count IV
The issue here is not whether 35
Ill. Adm. Code 2
12.302 regulates parking lots.
The issue is whether 35
Ill. Adm.
Code 212.316 regulates parking
lots.
In Count IV ofthe Complaint, paragraph 9, the People state that “as parking
lots
are regulated emissions sources pursuant to 35
III. Adm.
Code 212.3 16, Respondent was
required to submit a fugitive dust program.”
Thus the theory, as expressed in the Complaint, was that 212.3 16 regulated
parking lots.
Respondent’s affirmative defense states that 212.3 16 regulates only
“operations” (for example, manufacturing) that are specified in 312.302 “and that are
located in areas defined in 212.324(a)(l)”.
(emphasis added).
Thus 212.316 only applies
to manufacturing in those geographic areas that are specified by 212.324(a)(1).
4
In its Motion to Dismiss Affirmative Defenses, Complainant raised, for the first
tini~
-
the theory that parking lots were regulated through a clause of212.302 which states
“section 212.304 through 212.3 10...
shall apply to manufacturing operations in
Cook
County”.
The newtheory makes no reference to 212.3 16.
While the newtheory may be
arguably more compelling than the theory that was plead, this is not an acceptable time or
way to raise it.
Nor is the existence ofa better, but never pled, theory, a reason to dismiss
an afflrmnative defense to the theory that has been pled.
The fact remains that the affirmative defense addresses the theory pled in the
Complaint and the theory pled in the
Complaint has not been withdrawn.
WHEREFORE Respondent asksthe Board to reconsider its order and to reinstate
this affirmative defense.
Second Affirmative Defense to Count IV
Count IV alleged
a violation of
35
Ill. Adm.
Code 2 12.309
in
that Respondent did
not timely submit a fugitive dust program for its parking
lot.
Section 2
12.309 applies only
to emission units.
35 III Adni.
Code.
Respondent argued that its parking lot was paved and therefore is not an emission
unit because it is not a “part or activity at a stationary source that emits or has the
potential to emit any air pollutant.”
35
III. Adm.
Code 211.1950.
Ifa paved parking lot is
not an emissionunit no
fugitive dust plan is required.
The Board’s grant ofthe motion to strike this affirmative defense has raised
several questions and
Respondent would appreciate a clarification ofthe issues.
Has the Board found that the only issue raised is one offact
-
specifically whether
Q.
C. Finishers paved parking lot can emit dust?
ifthis is the case then the question of
whether a parking lot can emit or is capable ofemitting
is an element ofproofand
Complaint will have to meet its burden of so proving.
Alternatively,
is the Board suggesting that a paved parking lot is an emission unit
as a matter oflaw?
Ifthis is the case is a paved parking lot being regulated as an
“activity?”
While particulate matter may be
emitted by activities
occurring on the parking
lot, that would not seem to make the parking lot itselfan activity within the common
meaning ofthe term.
Furthermore the activities that would be occurring would be
occurring as a result ofmobile
sources, but Part 212 regulates
only stationary sources.
(See
35
III. Adm. Code 212.100.)
Ifthe Board is finding that a paved parking lot is an
emission unit as a matter oflaw due to the fact that mobile source activity can occur in the
same locationthen its ruling will have great significance to the regulated community and
Respondent respectfully suggests that such a decisionis more appropriately left for a
notice and comment rulemaking proceeding.
5
The Board also based its order dismissing the affirmative defense on a finding that
it was “argumentative
and raises an interpretation ofthe law.”
There appears to
be no
other authority for the propositionthat because an affirmative defense raises an
interpretation ofthe law it must be
stricken.
The Board has held in People v. Midwest
Grain Products, PCB 97-179, 1997 Ill. ENV LEXIS 493 (August 21,
1997), that the
Code of Civil
Procedure
does not “contrary to
the Attorney General’s interpretation
preclude pleading a defense which may include a legal conclusion...the parties are to be
informed ofthe legal theories oftheir opponents.
This is a prime function ofpleading.”Id
1997,
493111. ENV LEXIS at *8)
Q
C Finishers affirmative defense met the standard ofMidwest Grain.
It informed
the other party
ofits legal theory.
Respondent would appreciate
guidance
from the Board
on whether it was its intent to
reverse its position in Midwest Grain or whether it is
distinguishable from
Q
C Finishers case.
WHEREFORE Respondent asksthe Board to reinstate the affirmative defense.
First Affirmative Defense to Count VI
The Complaint alleges in Count VI, paragraph 18 that “Respondent does not
currently have a CAAPP permit,” and, in paragraph 19, that “by the actions described
herein Respondent has violated
cited
sections.”
The Complaint also demands that the
Board order Respondent “cease and Desist from any future violations of
the cited
sections.”
Page
17 ofthe Complaint.
Similar to the situation posed in Affirmative Defense
to Count Ill it is
instructive
to view this allegation as two time periods:
1) failure to have a CAAPP from December 7,
1995 to May 2, 2002, and
2) failure to have a CAAPP from May 3, 2002 until the present.
The Complainant, the Respondent, and the Board agree that compliance at a later
date would not excuse alleged violations from the first time period.
However the affirmative defense that Respondent raised addressed the second time
period
-
from May 3,
2002 to the present.
Respondent has alleged as its affirmative defense that it has had a federally
enforceable state operating permit (FESOP)
effective May 3, 2002, therefore it did not
require a CAAPP for the period from that date to the present.
While admitting
that it
does not have a CAAPP permit,
Q
C Finishers
is
introducing a new fact, one that will defeat the claim even if all allegations (for the
applicable time period) in the
Complaint are true.
The new fact introduced is that
Q
C
6
Finishers has a FESOP therefore pursuant to 415
ILCS
5/39.5(3)(c)
it does not also need
a CAAPP permit.
Therefore QC Finishers has met the standard for affirmative defenses.
As was the
case in the
affirmative defense for Count III,
Q
C Finishers
did not
achieve compliance by ceasing the complained-ofconduct, but by using an alternative
means to achieve compliance.
Therefore it was unable to simply admit the violation for
one time period and deny it for the second time period.
It had never “ceased and desisted”
from the failure to
have a CAAPP permit, but instead it alleged, through its affirmative
defense, that it no longer needs a CAAPP permit.
WHEREFORE Respondent asks the Board to
reconsider its order striking the affirmative
defense or in the alternative to clariFy that
it is not foreclosed from raising the fact that its
FESOP can be used to prove that there was no violation ofthe requirement that it have a
CAAPP permit from May 3, 2002 to the present.
Respectfully Submitted,
~
Its attorney
Dated: July 27, 2003
Heidi E.
Hanson
H. E. Hanson, Esq. P.C.
4721
Franklin Ave., Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
7
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached MOTION FOR
RECONSIDERATION OF BOARD ORDER by deposit in a U.
S. Mailbox before 4:00
p.m. on July 29,
2003 upon the following persons:
One copy:
Paula Becker Wheeler
Assistant Attorney General
Office ofthe Attorney General
188 West Randolph Street, 20th Floor
Chicago, Illinois
60601
Mr. BradleyHalloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois
60601
Original and nine copies:
Clerk,
Illinois Pollution Control Board
100 W. Randolph Street
State ofIllinois Center
Suite 11-500
Chicago, Illinois 60601
Dated:
July 29,
2003
Heidi E. Hanson
H. E. Hanson, Esq. P.C.
4721
FranldinAve,
Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
This filing is submitted on recycled paper.