vs.
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARDR £
C
E
AV ED
CLFRK’S
OFF!CE
CHEVRON ENVIRONMENTAL SERVICES
COMPANY,
To:
Christopher P.
Perzan
Assistant Attorney General
Environmental Bureau
188 W. Randolph Street
20th
Floor
Chicago, Illinois
60601
NOTICE OF FILING
Bradley P. Halloran, Esq.
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100
W. Randolph Street
Chicago, Illinois
60601
AUG
7
2003
John A. Urban, Civil Chief
Will County State’s Attorney’s Office
Will County Courthouse
14 W. Jefferson
Joliet, Illinois
60432
PLEASE TAKE NOTICE that I have on August 7,
2003
filed with the Office of the Clerk of the
Pollution
Control
Board the
attached
RESPONSE
TO MOTION TO
STRIKE
AFFIRMATIVE
DEFENSES, a copy of which is hereby served on you.
Chevron Environniental Services Company
BY:
~‘meir
Attorney
Barbara A. Magel
Karaganis
White & Magel
414 North Orleans Street
Suite 810
Chicago,Illinois
60610
312/836-1177
Fax:
312/836-9083
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
)
)
)
)
)
)
)
)
)
PCB No.
02-03
STATE OF ILLINOIS
Pollution
Control Board
Respondent.
)
BEFORE
THE ILLINOIS POLLUTION
CONTROL BO~CEIVED
CLERK’S
OFP~(’F
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
AUG
7
2003
Complainant,
)
STATE OF ILLINOIS
Pollution
Control Board
VS.
)
PCB No. 02-03
CHEVRON ENVIRONMENTAL
)
(RCRA
-
Enforcement)
SERVICES COMPANY,
)
)
Respondent.
)
RESPONSE OF RESPONDENT TO COMPLAINANT’S
MOTION TO STRIKE AFFIRMATIVE DEFENSES
NOW
COMES
CHEVRON
ENVIRONMENTAL
SERVICES
COMPANY
(“CESC”) by
its attorneys,
on
behalf of its predecessor
Texaco
Refining
& Marketing,
Inc.
(“TRMJ”)
in
accordance with
35
Ill.
Adm.
Code
101.500
and
states
as
follows
in
response to Complainant’s Motion to Strike Affirmative Defenses:
INTRODUCTION
In its Motion to Strike Respondent’s Affirmative Defenses, Complainant attempts
to
show
that
the
defenses
are
inadequately
pled
on
both
factual
and
legal
bases.
However,
in
making
that
attempt,
Complainant
fails to
take
into
account
that
each
defense must be
evaluated assuming
the facts
of the Complaint
and Answer
are well
pled.
Illinois
v.
Stein
Steel Mills
Services,
Inc.
PCB
02-1
(April
18,
2002).
Instead,
Complainant reads each of the affirmative defenses in isolation in clear contravention of
Board precedent and rule looking to the Answer and/or Supplemental Answer for facts
underlying affirmative
defenses.
Illinois
v.
QC
Finishers,
Inc.
PCB
01-7 (June
19,
2003)
and 35
Ill. Adm. Code
103.204.
Once the Respondent’s Affirmative Defenses in this case
are placed in the appropriate factual context, each must be viewed as sufficiently stated.
In
People v.
Peabody Coal Company,
PCB 99-134 (June 5,
2003), the Board provided
a
two-fold definition
of an affirmative
defense.
In
that
decision,
the Board
stated
in
relevant part, as follows:
In a valid
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
Co.,
PCB
97-193, slip
op. at
3
(Aug.
6,
1998).
The Board has also
defined
an
affirmative
defense
as
a
“response
to
a
plaint
iff’s
claim
which
attack
the
plaintiffs
legal
right to
bring
an
action,
as
opposed
to
attacking the truth
of the
claim.”
PCB 99-134 slip op. at page 3.
(emphasis added)
An
affirmative
defense
is
legally
sufficient
if,
taking
all
pled
facts
as
true,
it
presents
facts
and/or
arguments
to
negate
an
alleged
claim
or
conclusion
of
law.
Pryweller
v.
Cohen,
282
Ill.
App.
3d
899
(1996).
In
evaluating
whether
any
given
affirmative defense meets this standard, it is key to read any such defense in the context
of
the
facts
reflected
in
the
Complaint
and
Answer
as
a
whole,
in
contrast
to
Complainant’s narrowly focused reading.
Precedent has clearly established that such a
narrow focus is inappropriate.
Village of Riverdale v.
Allied Waste
Transportation,
334 Ill.
App. 3d
224
(2002)
To the contrary, the Board has expressly found that defenses must
be liberally construed
and read in context.’
Illinois
v. Midwest
Grain Products of Illinois,
PCB 97-179 (August 21, 1007).
In this
case, Respondent has included
twelve substantive
affirmative defenses in
its Answer to
the
Complaint.2
Each of
those
defenses, when
read in
the light
of the
Complaint
and
Answer,
clearly
places
Complainant
on
notice
of the
nature
of the
defensive materials that will be presented
at hearing and therefore
must be viewed as
adequately
pled.
Illinois
v.
John
Crane,
Inc.
PCB
01-76
(May
17,
2001)
and
People
v.
Douglas
Furniture
of
California,
Inc.,
PCB
97-133
(May
1,
1997).
In
each
instance,
Respondent
has
presented
a
legal
argument
targetted
at
Complainant’s
underlying
cause
of
action
and
each
must
therefore
be
viewed
as
appropriately
pled
as
an
affirmative
defense
under
relevant
Board
precedent.
As
stated
in
Illinois
v.
Midwest
1
The Board has also clearly stated that while the rules of
Civil
Procedure
which Complainant cites
in its Motion to
Strike
may offer
guidance,
such rules
are not
controlling
in
matters before
the Board.
Illinois v. Douglas Furniture of California, Inc., supra.
2
The
thirteenth affirmative
defense
included
on the
Answer
was
a reservation
of Respondent’s
right to assert additional defenses as development of
thecasecontinuecL
That defense was concluded to
forestall
any
argument that Respondent had waivered such right through its Answer.
2
Grain Products of Illinois, Inc.
PCB 97-179 (August
21,
1997):
“Many affirmative defenses
may involve,
ultimately,
a
conclusion
of
law.
.
.then
the
defense
is properly
pleaded,
notwithstanding
that the resolution of the defense may involve a conclusion of law, and
that the defense may be couched in terms of a legal theory.” at Id. 3.
ARGUMENT
I.
Respondent’s Affirmative Defenses As
To Count I Are Clearly
Sufficiently
Pled.
Turning
to
the
individual
Affirmative
Defenses that
counter
Count
I
of the
Complaint,
it
is
clear,
when
each
individual
defense
is
read
within
the
factual
framework
set
forth
by
the
Complaint
and
Answer,
that
each
defense
has
been
adequately stated to provide
Complainant
with
notice
of the theory or position to be
demonstrated at hearing.
In order to reach that conclusion, it is necessary to read each
defense in the factual setting created by the Complaint and Answer.
The relevant facts underlying each of the Affirmative Defenses related to Count I
of the Complaint included
in the Answer may be summarized
as follows:
1.
Respondent operated an oil refinery at the site from
1910 to 1981
located at
301
W. 2~Street, Lockport, Will County,
Illinois.
(Answer
to Complaint,
paragraph 3.)
2.
On
September
30,
1993,
the
Illinois
EPA
approved
Respondent’s
RCRA
Part
B
Post-Closure
Permit
Application
with
conditions.
.
.
Some of the
contested
conditions
were included
in
the permit
to address
the known
groundwater
contamination
at the
facility.
(Answer
to
and
Complaint,
paragraph 5.)
3.
CESC admits that TRMI monitored groundwater and routinely submitted
data
reports
to
the
Illinois
EPA.
CESC
further
admits
that
ongoing
groundwater monitoring and reporting are conducted
in compliance with
the Part
B
Post-Closure
Permit
for the
site.
CESC
further admitted
that
under
Texaco’s interim status
groundwater
assessment
plan and
interim
post-closure plan,
Texaco monitors
and submits
groundwater
reports
to
the
Illinois
EPA.
Texaco’s
Fourth
Quarter
1998
and
First
Quarter
1999
groundwater
monitoring
results
detected
various
constituents
in
eight
monitoring
wells.
Five
of
the
wells
are
located
on
Landfarm
No.
2,
-
Monitoring
Wells
PM-9R,
PM-bR,
PM-13,
PM-21
and
PM-24;
one
is
located on Landfarm No.
1, Monitoring Well PM-29R; and two
are located
3
on
the
southwest
corner
of the
facility, Monitoring Wells PM-5
and
R-1.
(Answer to and Complaint, paragraph 6.)
4.
CESC admits that samples from Monitoring Well PM-9R indicated at least
the following constituents
in
the groundwater:
Acenaphthene,
Fluorene,
Ethylbenzene and Xylenes.
(Answer to Complaint, paragraph 7.)
5.
CESC
admits
that
samples
from
Monitoring
Well
PM-bR
indicated
at
least
the
following
constituents
in
the
groundwater:
Lead.
(Answer
to
Complaint, paragraph 8.)
6.
CESC admits that samples from Monitoring Well PM-13 indicated at least
the
following
constituents
in
the
groundwater:
Acenaphthene,
Anthrancene,
Fluorene,
Phenanthrene,
Pyrene
and
Xylenes.
(Answer
to
Complaint, paragraph 9.)
7.
CESC
admits
that
samples
from
Monitoring
Well
PM-21R
indicated
at
least the following
constituents
in the groundwater:
Fluorene,
Lead
and
Phenanthrene.
(Answer to Complaint, paragraph 10.)
8.
CESC admits that samples from Monitoring Well PM-24 indicated at least
the
following
constituents
in
the
groundwater:
Lead.
(Answer
to
Complaint, paragraph 11.)
9.
CESC
admits
that
samples
from
Monitoring
Well
PM-29R
indicated
at
least
the
following
constituents
in the
groundwater:
Lead.
(Answer
to
Complaint, paragraph
12.)
10.
CESC admits
that
samples from Monitoring Well PM-5
indicated
at least
the
following
constituents
in
the
groundwater:
Acenaphthene,
Anthrancene,
sic
Arsenic,
Benzene,
Benzo(a)anthracene,
Chrysene,
Ethylbenzene,
Fluoranthene,
Fluorene,
2-Methyl-naphthalene,
Phenanthrene,
Pyrene,
Ethylbenzene,
Toluene
and
Xylenes.
(Answer
to
Complaint, paragraph 13.)
11.
CESC admits that
samples from Monitoring Well R-1
indicated at least the
following
constituents
in
the groundwater:
Acenaphthene,
Anthrancene,
sic
Benzo(a)-anthracene,
Benzo(a)pyrene,
Chromium,
Chrysene,
Fluoranthene,
Fluorene,
Lead,
Phenanthrene,
Pyrene,
Ethylbenzene,
Toluene and Xylenes.
(Answer to Complaint, paragraph
14.)
12.
CESC admits
that
groundwater
monitoring
reports
also contain
physical
descriptions of potential
groundwater
contamination indicating
that
the
water samples were turbid, brownish yellow or grayish, had
oil droplets,
film
or
sheen
and/or
hydrocarbon
odor.
(Answer
to
Complaint,
paragraph 15.)
4
13.
CESC admits that levels of Arsenic, Lead, Benzene, Benzo(a)pyrene, Bis(2-
ethylhexyl)-pthalate,
Chromium,
Ethylbenzene,
Toluene
and
Xylenes
found in Monitoring Wells PM-9R, PM-bR, PM-21R,
PM-24, PM-29R, R-1
and PM-5 as set forth in Exhibit
A, exceed the Board
Class I groundwater
quality
standards,
as
set
forth
in
the
Board
Groundwater
Quality
Regulations, 35 Ill. Adm.
Code
620.410,
(Answer to Complaint, paragraph
32.)
14.
CESC
admits
that
levels
of
Lead,
Benzo(a)pyrene
and
Bis(2-ethylexyl)-
pthalate, found in Monitoring Wells R-b,
as set forth in Exhibit A, exceed
the Board Class II groundwater quality standards, as set forth in the Board
Groundwater
Quality
Regulations,
35
Ill.
Adm.
Code
620.420.
CESC
denies
that
any
such
exceedences
constitute
violations
of
620.420
standards
and
affirmatively states that
such
standards
are not applicable
to
the
groundwater
samples
from
Monitoring
Well
R-1
as
set
forth
in
Exhibit A.
(Answer to Complaint, paragraph 34.)
15.
CESC
admits
that
levels
of
Arsenic,
Benzene,
Benzo(a)-anthracene,
Benzo(a)pyrene,
Bis(2-ethylhexyl)-pthalate,
Chrysene,
Chromium,
Fluorene,
Lead, Toluene
and
Xylene,
found
in Monitoring Wells PM-9R,
PM-bR,
PM-21R, PM-24, PM-29R, R-1
and PM-5 as set forth in Exhibit A,
exceed the Groundwater
Remediation
Objectives set forth in Table E Tier
1
of
the
Board
Waste
Disposal
Regulations,
35
Ill.
Adm.
Code
742,
Appendix
B,
Table
E,
Tier
1
for
Class
I
groundwater.
(Answer
to
Complaint, paragraph 37.)
16.
CESC
admits
that
levels
of
Benzo(a)-anthracene,
Chrysene,
Benzo(a)pyrene,
Bis(2-ethylhexyl)-pthalate
and
Lead
and
Toluene, found
in Monitoring Well R-1
as set forth in Exhibit A, exceed the Groundwater
Remediation
Objective
set
forth
in
Table
E
Tier
1
of
the
Board
Waste
Disposal Objectives set forth in Table E Tier 1
of the Board Waste Disposal
Regulations,
35111. Adm. Code 742, Appendix B, Table E, Tier 1 for Class II
groundwater.
(Answer to Complaint, paragraph 38.)
17.
CESC answers that the Illinois
EPA approved Post-Closure
Groundwater
Quality
Assessment
Plan
speaks
for
itself.
(Answer
to
Complaint,
paragraph 40.)
Given this litany of facts, it is clear that Respondent has adequately supported its
Affirmative Defenses with well-pled facts in accordance with
35 Ill. Adm.
Code
103.204
and Board precedent.
In Count
1,
Complainant
asserts
that
Respondent
violated
Section
12(a)
of the
Illinois Environmental Protection Act (“Act”):
5
a)
because
contaminants
detected
in
groundwater
are
above
35
Ill.
Adm.
Code
Class I and II Groundwater Quality Standards; and
b)
such contaminants
are above
TACO Tier I, Class I or Class II Objectives,
two times PQL’s or the PQL.
(Complaint paragraphs
43 and 44.)
The
Sixth,
Seventh, Eighth,
Ninth,
Eleventh and
Twelfth
Affirmative Defenses
each present
a
legal argument
as to
why, even taking
the
Complaint
allegations
and
statements contained in the Answer as true, these assertions of violation cannot prevail
as a matter of law.
Such attacks on the fundamental viability of the Count
1 claim in the
Complaint
are
the
essence
of
Affirmative
Defenses,
and
therefore,
Complainant’s
Motion
to
Strike
Respondent’s
Affirmative
Defenses
must
be
denied
as
to
these
Defenses.
Sixth Affirmative
Defense:
In the Sixth Affirmative Defense, Respondent
stated
that
Complainant was estopped
from pursuing
its claims of Section
12(a)
violations in this
matter.
Board
precedent
has
clearly
established
that
estoppel
is
an
appropriate
affirmative defense.
Illinois
v.
Peabody Coal Company,
PCB 99-134 (June
5,
2003)
if it is
assumed for purposes of evaluating the affirmative defenses that:
•
the contaminants
were noted
in quarterly
reports routinely
submitted
to
EPA for years in advance of any Notice of Violation;
•
Respondent was subject to an interim status groundwater assessment plan
and interim post-closure care plan.
(Complaint, paragraph
6.);
•
Respondent
closed
various
waste
units
at
the
Site.
(Response
to
Complaint, paragraph 4.);
•
the
Illinois
Environmental
Protection
Agency
approved
a
Part
B
Post-
Closure Permit for the Site on September 30,
1993.
(Complaint, paragraph
5
and Answer thereto.); and
•
Respondent has voluntarily
addressed
groundwater impacts at the Site in
some
of
the
same
wells
alleged
to
be
contaminated
by
Complainant
beginning in 1985.
(Response to Complaint, paragraph
13.)
Respondent
is entitled to assert and demonstrate at hearing that the passage of time
and
Agency
inaction
is
sufficient to estop
the
Agency
from pursuing
this
12(a)
claim.
6
Basically
these
facts,
if
taken
as
true,
show
that
the
Complainant
knew
of
the
groundwater impacts
of which it now complains for over fourteen years, took various
regulatory actions, including permit issuance, and yet did not cite or notify Respondent
of any violation
in the
pleadings.
In this
instance, there
are enough
facts before
the
Board and Complainant
to allow Respondent the opportunity
to establish
whether the
Count I claim is estopped.
Seventh Affirmative Defense:
The Seventh Affirmative Defense should
also be viewed
as sufficient once it is reviewed in light of the Complaint, Answer and the facts alleged
in the defense itself.
The Complaint alleges that
contaminants were detected in certain
groundwater monitoring wells at the site.
The defense then states that Respondent was
in
compliance
with
interim
status
and
other
groundwater
regulatory
requirements.
Basically,
the
defense
presents
a
legal
question;
if
a
facility
is
complying
with
requirements
imp~sedby
one
regulatory
program,
may
it
still
be
claimed
to
be
in
violation of Section
12(a) of the Act.
Respondent’s position
is that it may not, and that
position constitutes an affirmative defense to Complainant’s Count I.
Eighth
Affirmative
Defense:
The
Eighth
Affirmative
Defense
is
a
more
particularized
statement
of
a
defense
similar
to
that
presented
in
the
Seventh
Affirmative Defense.
In paragraph
34 of the Complaint, Complainant has asserted that
exceedences
of
35
Ill.
Adm.
Code
620
numerical
standards
constitute
violations
of
Section 12(a) of the Act.
This defense is analogous to that upheld in
Illinois
v.
Stein Steel
Mills,
PCB
02-1
(April
18,
2002),
concerning
compliance
with
an
operating
program
shielding a company from an allegation of a Section 9(b) of the Act violation.
With the Eighth Affirmative Defense, Respondent
is averring that, as a matter of
law, given the
site’s compliance with
interim status regulations
and
a permit covering
groundwater conditions
at the site, as stated in the Answer to the Complaint, paragraph
6,
a
claim
of
Section
12(a)
violation
due
to
exceedences
of
35
Ill.
Adm.
Code
620
standards may not be sustained.
This affirmative defense clearly attacks Complainant’s
authority to assert Count I of the Complaint and so constitutes
a sustainable affirmative
defense.
lllinois v. QC Finishers, Inc.
PCB 01-7 (June 19,
2003).
Again, read in the context
7
of the Pleadings in this matter, the Eighth Affirmative Defense has been stated so as to
provide Complainant
with
sufficient understanding
of
issues to
be raised
during
the
hearing and therefore should be allowed.
As the Complaint has alleged, operations at the site ceased in
1981,
well before
the
35
Ill. Adm.
Code
620 numerical standards
were promulgated
in November,
1991.
Therefore, any discharge to ground water would have occurred prior to that
regulatory
promulgation.
The Answer
states
that
treatment
of groundwater
to
address impacts
began as early as 1985 in the southwestern
corner of the site, where
wells R-1 and PM-5
-
which
are the
subject
of Count
I
of the
Complaint
-
are
located.
(See
Answer
to
Complaint, paragraphs
13 and 14.)
Ninth Affirmative
Defense:
Clearly
sufficient
facts are
alleged
in the
Complaint
and Answer to support the Ninth Affirmative Defense as presented in the Answer.
If it
is
taken
as
true,
for
purposes
of
this
analysis
only,
that
any
alleged
discharge
and
groundwater
impacts
predated
the
adoption
of
35
Ill.
Adm.
Code
630
numerical
standards,
than application
of those standards
in this case would
constitute retroactive
regulation as stated in the Ninth Affirmative Defense.
The Defense has been adequately
stated in the pleadings to allow Respondent the opportunity
to demonstrate its validity
at hearing.
Eleventh
Affirmative
Defense:
In the Eleventh
Affirmative
Defense,
Respondent
has stated a clear legal argument in opposition to Count I of the Complaint.
Paragraphs
37
and
38
of the
Complaint
assert
that
the
contaminants
at
the
site exceeded
TACO
Class I and II standards
as grounds for a finding of a Section 12(a) violation.
However,
as stated in the Defense, these TACO standards
are not applicable
in this situation
as a
matter
of law; and
therefore no
claim for violation
of Section
12(a) of the Act may be
maintained based
on TACO numerical objectives.
The facts underlying this defense are
set
forth in the
Complaint
and Answer
as shown
above.
The question
here becomes,
whether,
given these pled
facts,
a Section
12(a)
claim may be maintained
based
on
a
TACO
exceedence.
Clearly,
this
legal
issue
goes
to
the
Complainant’s
authority
to
8
assert
its
claim and
therefore
must
be
viewed as
an
appropriate
affirmative
defense
under prior Board decisions.
The Eleventh Affirmative
Defense
also deals with the Complainant’s
attempts to
rest its Section 12(a) claim on an alleged exceedence of a PQL.
Again the facts pertinent
to this aspect of the affirmative defense are set forth in the Complaint and Answer.
The
Defense posits that
an exceedence of a PQL is
insufficient to establish
any violation of
the
Act,
as
a
matter
of
law,
and
therefore
the
Section
12(a)
Count
must
fail.
The
Eleventh Affirmative Defense sets
forth a valid and
sufficient
legal affirmative
defense
to Count I.
The Seventh, Eighth,
Ninth and Eleventh Affirmative Defenses each constitute
a
legal theory that, if adopted, would contravene Complainant’s assertion of Section 12(a)
violations.
Under
Midwest
Grain,
supra,
such
defenses
are
properly
presented
as
conclusions
of
law.
Therefore,
the
inclusion
of
these
Affirmative
Defenses
in
the
Answer should be sustained, and Complainant’s Motion denied.
II.
Respondent’s Affirmative Defenses Are Sufficiently Pled As To Count II.
The
majority
of the
remaining
Affirmative
Defenses
relate
to
Count
II
of the
Complaint.
That Count alleges
a violation of Section 21(a) of the Act, the open dumping
prohibition.
Here
again, when
the
First,
Sixth,
and
Tenth
Affirmative
Defenses
are
examined in the context of the facts contained in the pleadings, they must be viewed as
legally and factually sufficient.
Count
II of the
Complaint and
Answer
set forth the following facts relevant to
the Affirmative Defenses to the alleged violation in this
Count:
1.
Operations ceased at the site in 1981.
(Answer to Complaint, paragraph 3.);
2.
Great
Lakes
Carbon
processed
coke
at
the
Site
until
about
1981.
(Answer
to
Complaint, paragraph
9.);
3.
CESC
affirmatively
states
that
such shipment
was made
to
remove the
coke
fines
from the site expeditiously to address IEPA’s interest, despite the fact that CESC was
already
involved
in identifying
recycling options
for the materials prior to issuance
9
of the
IEPA
Violation
Notice.
(Answer
to
paragraph
10
of Complaint
and
First
Affirmative Defense.); and
4.
CESC had plans to recycle the coke fines prior to issuance of EPA Violation Notice.
(Answer to Complaint, paragraph 10, and Fifth Affirmative Defense.)
In Count II of the Complaint, it is then alleged that Respondent violated Section
21 of the Act as follows:
By allowing the coke fines and tar-like material to be disposed
of or
stored on the ground in various
areas over
approximately an acre in
the
west-central
part
of
the
site,
Texaco
caused
or
allowed
the
consolidation waste at the site.
(Complaint, paragraph 21.)
To
counter
these
allegation
of
violation,
Respondent
has
included
three
affirmative defenses negating
Complainant’s assertion of violation.
When read
in the
context
of
the
factual
elements
in
the
Complaint
and
Answer,
and
taking
into
consideration Board
precedent
upholding
legal theories
as
affirmative
defenses,
it
is
clear that
each of these affirmative
defenses should
survive the Complainant’s
Motion
to Strike
Illinois
v. Midwest Grain Products ofIllinois, supra.
Fourth Affirmative
Defense:
The Fourth
Affirmative Defense
states that
the coke
fines at the site were the product of an independent
contractor, not Respondent.
Such
an
Affirmative
Defense
has
been
recognized
as
acceptable
in
prior
cases
before
the
Board.
Illinois
v.
Wood River Refining Company,
PCB
99-120
(August
8,
2002).
As noted
above,
Complainant
has
recognized
that
coke.
was
previously
processed
and
Respondent
has confirmed
that
such processing
was
done
by
independent
contractor
Great
Lakes
Carbon
(See
Complaint,
paragraph
9
and
Answer
thereto).
This
confirmation
is
also
contained
in
the
Fourth
Affirmative
Defense
itself.
Clearly,
Respondent
has
adequately
pled
an
independent
contractor
affirmative
defense
to
Complainant’s claim of open dumping and should have an opportunity
to establish that
defense at hearing.
Cole Taylor Bank v. Rowe Industries, Inc.
PCB 01-173 (June 6, 2002).
In response to paragraph
10
of the
Complaint, the
Answer
also
states that
the
coke materials were not wastes, but were in fact a product
held for
sale for recycling.
The
determination
of whether
the coke fines
were wastes
or not
is
an
essential
legal
10
element
of Complainant’s
Section
21
claim.
The factual allegations
before the
Board
indicate
that
the
material
was
processed
and
held
for
sale.
(See
Affirmative
Fifth
Defense, as well
as Answers to
paragraphs
3,
9 and
10
of the Complaint.)
Again, the
Fourth Affirmative
Defense sets
forth
a viable
defensive legal theory when viewed in
context of the Complaint and Answer and therefore should be upheld.
With
these
facts
before
it,
the
Board
clearly
has
adequate
basis
to
evaluate
Respondent’s Fourth Affirmative Defense.
Simply put, Respondent has asserted that no
Section 21 violation may be found when the coke was the product
of an independent
contractor and
was
never consolidated
as waste by
CESC.
This two-fold
Affirmative
Defense has been properly asserted.
Sixth
Affirmative
Defrnse:
The
next
affirmative
defense
as
to
Count
II
of the
Complaint is the Sixth Affirmative Defense.
In this Defense, Respondent has asserted
that
the
Complainant
is
estopped
from
asserting
a
violation
of
the
open
dumping
provision based on coke fines which have been present on
site since at least
1981 when
operations ceased.
The Complaint
demonstrates
a
gap
of about eighteen years
from
when the last possible
time coke fines could have been placed at the site until any action
was
taken by
Complainant.
In
that
interim
period,
the
IEPA
reviewed
the
site
for
groundwater monitoring,
waste management unit closures and permitting
as stated in
the Complaint. (Complaint and Answer, paragraphs
4,
5,
6
and
13.)
Yet, no note of the
coke fines was made until
1999.
Clearly,
sufficient acts are presented in the pleadings to
raise an
estoppel issue.
As
stated
above,
estoppel has been
recognized
as
a
proper
affirmative defense in prior cases.
Illinois v. Peabody Coal, supra.
Tenth Affirmative
Defense:
The Tenth Affirmative Defense states that
application
of
the
open
dumping
prohibition
to
the
coke
fines
at
the
site
would
constitute
retroactive
regulation.
An
allegation
of
retroactive
regulation
may
constitute
an
affirmative
defense.
Illinois v. Peabody Coal, supra.
The coke fines could only have been
placed at the site prior
to the cessation of operations
in
1981
at the very
latest.
In
all
likelthood, the
fines were placed
at
the site
prior to
that
time
-
during
the preceding
seventy years of refinery operation.
Based on
this chronology,
it is
quite
possible that
11
Respondent can demonstrate at hearing that placement of the coke fines on
the site (or
in the terms of the Act, “consolidation of refuse from one or more sources”) would have
had to have taken place before the
1980 enactment of the open dumping prohibition.
If
that is the case,
application
of the
opening dumping
provision
here would
constitute
retroactive regulation in contravention of Respondent’s due
process rights.
Therefore,
the Tenth Affirmative Defense
is a viable affirmative defense to Count II and has been
sufficiently pled.
III.
Sufficiency ofRemainingDefenses
Complainant
seeks
to
strike
the
remaining
affirmative
defenses based
on
the
assertion that they speak to the relief
sought, rather than the claims of violation.
While
the
Respondent
does
not
agree with
this
view,
Respondent
is
willing
to forego these
affirmative
defenses,
with
the
understanding
that
defenses
to
the
imposition
of any
penalty
amount or costs
remain admissible
at hearing.
However, Respondent
believes
it is important to address a few points raised with respect to the First, Second and Third
Affirmative Defenses
in Complainant’s Motion to
Strike regardless
of its above stated
position.
The
First
Affirmative
Defense
deals
with
Complainant’s
claim
for
injunctive
relief.
In its Motion to Strike, Complainant asserts that it can get injunctive relief simply
based on the statutory
provision allowing such relief.
Village of Riverdale v. Allied Waste
Transportation,
334
Ill.
App.
3d
224
(2002)
is
cited
as
support
for
that
proposition.
However, that case dealt with
a situation in which
ongoing violations were possible, if
not probable, and is readily distinguishable from the current matter.
In this situation, as
shown
in
the
Answer,
there
are
no
ongoing
violations.
The
groundwater
is
being
remediated
and
is
subject to
a site-wide Groundwater
Management
Zone, and
almost
all
of the
coke
fines have
been
removed
in
accordance
with
Illinois
EPA
approved
plans.
Therefore, no
allegation of violation for which injunctive
relief would be needed
can be pursued here.
All of the conditions complained of have been resolved already to
the
satisfaction
of the
IEPA.
Complainant
basically
has
no
legal
basis
to
assert any
claim for-injunctive relief.
12
With
respect
to
the
Second
Affirmative
Defense,
Complainant
is
similarly
without
legal
basis
to
make
any
claim
for
costs.
The
Act
states
that
costs
may
be
claimed when a violation is willful,
knowing or repeated violation of the Act.
415
ILCS
Section 5/42(f).
Complainant has made no
allegation that the
claimed violations here
are willful,
repeated or knowing.
Therefore, Complainant
can make no
claim for costs
under the Act and Respondent is entitled to contest any such claim or award.
The
remaining
Affirmative
Defenses
deal
with
the
excessiveness
of
Complainant’s
penalty
demands
given
the
circumstances
of
this
case.
Respondent
reserves
all
of it rights
and
defenses
to
demonstrate
that
any penalty
here would
be
inappropriate under the Act and precedent.
WHEREFORE
Respondent
respectfully
prays
that
Complainant’s
Motion
to
Strike be denied.
In the
alternative,
if the Motion to Strike
is not
denied, Respondent
respectfully
requests
leave
to
file
amended
Affirmative
Defenses
to
address
any
insufficiencies identified by the Board.
Respectfully Submitted,
,,/Karaganis, White
& Magel Ltd.
Barbara A. Magel
Karaganis, White
& Magel Ltd.
414 North Orleans Street
Suite 810
Chicago, Illinois
60610
312-836-1177
13
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached RESPONSE
TO MOTION TO
STRIKE
AFFIRMATIVE
DEFENSES by United States mail, postage prepaid, or hand delivery,
upon the following persons:
Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 W. Randolph Street, 11th Floor
Chicago, Illinois
60601
Christopher P. Perzan
Assistant Attorney
General
Environmental Bureau
188 W. Randolph Street
20th
Floor
Chicago, Illinois
60601
Bradley Halloran
Hearing Officer
illinois Pollution Control Board
100 W. Randolph Street, 11th Floor
Chicago, Illinois
60601
John A. Urban, Civil Chief
Will County State’s Attorney’s Office
Will County Courthouse
14 W. Jefferson
Joliet, Illinois
60432
A. Magel
Attorney
Dated:
August 7, 2003
