BEFORE THE ILLINOIS POLLUTION CONTROL
    BOARJRECEItVED
    CLERK’S OFFICE
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    I~UG
    12
    2003
    Complainant,
    )
    STATE OFILLINOIS
    Pollution
    Control Board
    -vs-
    )
    No.
    PCB
    03
    -
    73
    (Enforcement)
    RIVERDALE RECYCLING,
    INC.,
    an Illinois corporation,
    and
    TRI-STATE DISPOSAL,
    INC.,
    an Illinois corporation,
    Respondents.
    TO:
    Mr. Mark La Rose
    Mr.
    Brad Halloran
    Ms.
    Clarissa
    C. Grayson
    Hearing Officer
    Attorneys
    at Law
    Pollution Control Board
    734 North Wells Street
    100 W.
    Randolph,
    Ste.
    11-500
    Chicago,
    IL 60610
    Chicago,
    IL 60601
    Ms. Dorothy Gunn,
    Clerk,
    Illinois Pollution Control Board
    100 W.
    Randolph,
    Ste.
    11-500,
    Chicago,
    IL 60601
    NOTICE OF FILING
    PLEASE TAKE NOTICE that we have today,
    August
    12,
    2003 filed an
    original and nine copies of COMPLAINANT’S MOTION TO DISMISS
    AFFIRMATIVE DEFENSES with Ms.
    Dorothy Gunn,
    Clerk of
    the Illinois
    Pollution Control Board,
    100 W.
    Randolph,
    Suite 11-500,
    Chicago,
    IL.
    60601,
    a copy of which is attached herewith and served upon you.
    Respectfully submitted,
    PEOPLE OF THE STATE OF ILLINOIS
    LISA MADIGAN
    -Attorney General of
    the
    State. of Illinois
    BY:
    ________________
    PAULA BECKER WHEELER
    Assistant Attorney General
    Environmental Bureau
    188
    W.
    Randolph St.,
    20th
    Flr.
    Chicago,
    IL 60601
    (312)
    814-1511
    BEFORE THE ILLINOIS. POLLUTION CONTROL
    BOARD
    PEOPLE OF THE STATE OF ILLINOIS
    )
    CLERICS
    OFFICE
    Complainant,
    .
    )
    L\UG
    1
    2
    2003
    -vs-
    )
    PCB No.
    037~TATEOFILLINOIS
    (Enforcement)
    RIVERDALE
    RECYCLING,
    INC.,
    )
    k’ollutlon Control
    Board
    an
    Illinois
    corporation,
    and
    TRI-STATE
    DISPOSAL,
    INC.,
    an
    Illinois
    corporation
    Respondent.
    MOTION TO DISMISS AFFIRMATIVE DEFENSES
    Now comes Complainant,
    PEOPLE OF THE STATE OF ILLINOIS, by LISA
    MADIGAN, Attorney General of the State of Illinois, pursuant
    to
    Section 101.506 of the Illinois Pollution Control Board’s
    Procedural
    Regulations and Section 2-615 of
    the Illinois Code of Civil Procedure,
    735 ILCS 2-615
    (2002)
    ,
    for an order dismissing,
    with prejudice,
    Respondents’,
    RIVERDALE RECYCLING,
    INC.
    and TRI-STATE DISPOSAL,
    INC.,
    affirmative defenses to the Complaint.
    INTRODUCTION
    On November
    19,
    2002,
    Complainant,
    People of
    the State of
    Illinois
    (“State”),
    filed
    a two-count complaint against Respondents,
    RIVERDALE RECYCLING,
    INC.
    and TRI-STATE DISPOSAL,
    INC.
    (‘Respondents”).
    The complaint alleges Respondents committed
    violations of the Illinois Environmental Protection Act
    (“Act”)
    ,
    415
    ILCS
    5/1
    et
    seq.
    (2002),
    and regulations thereunder.
    Count
    I
    is titled
    Open Dumping of Waste
    and Count II is titled
    Conducting a Waste Storage Operation Without a Permit.
    On July
    11,
    2003,
    Respondents filed their Answer and Affirmative Defenses.
    STANDARD
    The Illinois Pollution Control Board’s procedural
    rules provide
    that “any facts constituting an affirmative defense must be plainly
    set forth before hearing in the answer or in a supplemental answer,
    unless the affirmative defense could not have been known before
    hearing.”
    35
    Ill. Adm.
    Code 103.204(d)
    .
    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 Illinois Pollution Control Board
    (“Board”) has also defined an affirmative defense as a “response to a
    plaintiff’s claim which attacks the-plaintiff’s legal right to bring
    an action,
    as opposed to attacking the truth of claim.”
    Farmer’s State
    Bank
    V.
    Phillips Petroleum Co.,
    PCB 97-100,
    slip op.
    at 2 n.
    1
    (Jan.
    23,
    1997)
    (quoting Black’s Law Dictionary)
    .
    Furthermore,
    if the
    pleading does not admit the opposing party’s claim, but instead
    attacks the sufficiency of that claim,
    it is not an affirmative
    defense.
    Warner Agency v.
    Doyle,
    121 Ill. App.
    3d 219,
    221,
    459 N.E.2d
    663,
    635
    (4th Dist.
    1984)
    ARGUMENT
    SECTION 22.38
    ~Bt
    General Affirmative Defense to all Counts
    Respondents raise this affirmative defense to all Counts stating
    they are in compliance with the Act having acted in accordance with
    Section 22.38 of the Act,
    415 ILCS 2/22.38
    (2002)
    .
    However,
    this
    affirmative defense contains only this broad assertion without
    2
    supporting
    facts and as such falls well short of the standard required
    by the Board.
    To gain safe harbor under Section 22.38 of the Act, much more
    is
    required.
    These requirements include
    inter alia:
    (1) the facility
    accept exclusively general construction or demolition debris,
    (2)
    within 48 hours of the receipt of the debris that they be sorted,
    (3)
    that the debris be transported off-site within 72 hours,
    (4) that all
    the sources and transporters of the accepted materials are identified,
    (5)
    access to the facility is controlled, and
    (6) proper documentation
    and record keeping is provided to the Illinois Environmental
    Protection Agency
    (“Illinois EPA”)
    As stated above,
    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.
    at
    3.
    Respondents do not allege that
    they have complied with a single one of the over eleven requirements
    needed to come into compliance with Section 22.38 of the Act.
    Respondents merely state,
    in abbreviated fashion, that “The waste
    observed.
    .
    .
    outside the permitted area was general construction and
    demolition debris which is authorized for storage without a permit
    pursuant to Section 22.38 of the Act” and,
    “Respondents are therefore
    in compliance with the Act pursuant to Section 22.38.”
    CAns.
    at 9-10,
    internal citations omitted)
    In raising this defense, Respondents have simply named a section
    of the Act then asserted safe harbor under its provisions, which they
    neglect to even mention.
    Nowhere in Respondent’s l~Affirmative
    .3
    Defense is any mention of the particulars of Section 22.38 of the Act
    or that Respondent’s have been or are currently in compliance with
    Section of the Act.
    As such,
    this affirmative clearly falls below the
    Boards standard of “new facts or arguments” as laid out in
    Community
    Landfill Co.
    Id.
    Rather Respondents
    1st
    Affirmative Defense sets forth
    a two sentence legal assertion, failing to set forth or even mention
    key elements of the affirmative defense Respondent
    is attempting to
    employ.
    As such,
    the defense fails to specify facts or arguments
    required for pleading a claim or a defense, and should be dismissed.
    Reliance on State Agents
    2’~General Affirmative Defense
    to All Counts
    The next affirmative defense asserted by Respondents
    is somewhat
    puzzling.
    In two more abbreviated sentences,
    Respondents allege they
    were informed of the presence of Section 22.38 of the Act by two
    agents of the Illinois EPA,
    Cliff Gould and James Haennicke.
    The
    first sentence goes on to state the Illinois EPA. agents explained that
    this statute would permit certain types of wastes to be stored onsite
    as long as certain procedures follow and certain notice given.
    The
    second abbreviated sentence appears to state that through the mere
    knowledge of this statute, Respondents have somehow managed to
    magically come into compliance with this section even though,
    as
    discussed early, compliance with this Section requires a number of
    affirmative steps.
    Respondents have not alleged they have taken any
    of the steps required by Section 22.38.
    Further
    asserting
    this
    alleged
    compliance,
    Respondents
    state
    that
    4
    such
    compliance
    was “undertaken in a manner specially suggested and
    approved by personnel in the Agency’s enforcement division.” Ans. At
    10.
    Complainant is unsure as to the meaning of this allegation.
    While the State acknowledges the possibility that its agents may have
    mentioned and provided Respondents with a copy of Section 22.38,
    the
    approval portion of this statement remains a mystery.
    Are Respondents
    alleging that such approval came from the state agents,
    stating this
    section of the Act was an acceptable way to achieve compliance,
    or is
    Respondent alleging that such approval came from the Illinois EPA
    itself,
    as required by the statute?
    As discussed above, the Board has stated that 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.”
    Community Landfill Co.
    at
    3.
    The Respondents,
    in this 2’~General Affirmative Defense,
    do not meet
    this definition imposed by the Board.
    The affirmative defense
    contains no new facts or arguments.
    Respondents merely allege they
    gained the knowledge of a certain section of the Code and through
    virtue of this knowledge,
    they are in compliance.
    This
    is not an
    argument, rather it is
    a statement of a fact,
    as there is certainly
    nc~t:hing“new” about the existence of Section 22.38, followed by an
    declaration of Respondents’
    innocence.
    This certainly does not rise
    to the level of a “new fact or argument” and as
    a result this
    affirmative
    defense
    should
    be
    dismissed.
    For the sake of argument,
    if one assumes that this 2~affirmative
    defense is adequately pled,
    it appears that the Respondents are
    5
    actually attempting to mount
    a defense of estoppel.
    By employing a
    defense of estoppel, Respondents would essentially be trying to
    equitably estop the Complainant from enforcing its own laws because of
    representations made by its agents.
    However, the defense of equitable
    estoppel must be specifically pleaded or it
    is waived.
    Hubble v.
    O’Connor,
    291 Ill.App.3d 974,
    684 N.E.2d 816,
    823
    (1st Dist.
    1997);
    Dayan v. McDonald’s Corporation,
    125 Ill.App.3d 972,
    466 N.E.2d 958,
    977
    (1st Dist.
    1984)
    The elements of
    the. defense are:
    1)
    words or conduct by the
    plaintiff amounting to a misrepresentation or concealment of material
    facts;
    2)
    the plaintiff must have had knowledge at the time the
    representations were made that they were untrue;
    3)
    the defendant must
    not have known the truth respecting the representatiOns when the
    representations were made and acted on by the defendant;
    4)
    the
    plaintiff must intend or reasonably expect that its conduct or
    representations will be acted upon by the defendant;
    5)
    the defendant
    must have in good faith relied upon the misrepresentation to its
    detriment;
    and
    6)
    the defendant must be prejudiced
    if the plaintiff is
    permitted to deny the truth of the representations or conduct.
    Vaughn
    v.
    Speaker,
    126 Ill.2d 150,
    533 N.E.2d 885,
    890
    (1989);
    Elson
    v.
    State
    Farm Fire and Casualty Company,
    295 Ill.App.3d
    1,
    691 N.E.2d 807,
    817
    (1st
    Dist.
    1998)
    .
    Additionally, Respondents must plead exceptional circumstances
    before the doctrine can be invoked against a public body.
    People ex
    rel.
    Brown
    v. State Troopers Lodge No.
    41,
    7
    Ill.App.3d
    98,
    104-105,
    286 N.E.2d 524,
    528-529
    (4th Dist.
    1972);
    Monarch Gas v. Illinois
    6
    Commerce Commission,
    51 Ill.App.3d 892,
    898,
    366 N.E.2d 945
    (5th Dist.
    1977).
    Respondents have neglected to plead any elements or
    circumstances at all in their affirmative defense.
    Once again,
    it can
    be seen that Respondent’s purported affirmative defense is
    insufficient as a matter of law and should be dismissed.
    CONCLUSION
    For the foregoing reasons, the Complainant respectfully requests
    that Respondents’
    affirmative defenses be dismissed,
    with prejudice.
    PEOPLE OF THE STATE OF ILLINOIS,
    LISA
    MADIGAN,
    Attorney
    General of the S?ate
    of Illinois
    By:________________
    PAULA BECKER WHEELER
    Assistant Attorney General
    Attorney for Complainant
    Environmental Bureau
    188 W. Randolph St.,
    20th
    ~
    Chicago,
    Illinois 60601
    (312)
    814-1511
    7
    CERTIFICATE OF SERVICE
    I, PAULA BECKER WHEELER,
    an attorney,
    do certify that I caused to
    be served this 12th day of August,
    2003,
    the foregoing Complainant’s
    Motion to Dismiss Affirmative Defenses and Notice of Filing upon the
    persons listed on said Notice, by placing the same in the U.S. Mail,
    postage prepaid, ‘at 188 W.
    Randolph,
    Chicago, IL 60601.
    PAULA BECKER WHEELER

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