RECEIVEL~
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BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
AUG
2’ 02003
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF ILLINOIS
)
Pollution Control Board
)
Complainant,
)
)
PCBNo.02-3
v.
)
(RCRA
-
Enforcement)
)
TEXACO REFINING &
MARKETING,
)
INC., a Delaware Corporation,
)
)
Respondent.
)
NOTICE
OF
FILING
TO:
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that
on August 20, 2003, we filed with the Illinois Pollution Control
Board a MOTION FOR LEAVE TO FILE REPLY TO RESPONDENT’S RESPONSE TO MOTION TO
STRIKE AFFIRMATIVE DEFENSES,
a true and correct copy ofwhich is attached and hereby served
upon you.
Respectfully submitted,
LISA MADIGAN
Attorney General
State ofIllinois
BY:
-
ChristopherP. P
an
Assistant Attorney General
Environmental Bureau
188
W. Randolph
St., 20th Floor
Chicago, Illinois
60601
(312) 814-3532
SERVICE LIST
Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 W. Randolph Street,
1
1th
Floor
Chicago, Illinois 60601
Barbara Magel
Karaganis, White & Magel
414 North Orleans Street, Suite 810
Chicago, Illinois 60610
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
BEFORE THE ILLINUIS POLLUTION CONTROL BOARD
RECEIvED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
AUG
2’
02003
)
STATE OF IWNOIS
Complainant,
)
Pollution
Control Board
)
PCB No. 02-3
v.
)
(RCRA
-
Enforcement)
)
TEXACO REFINING & MARKETING,
)
INC., a Delaware Corporation,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY TO
RESPONDENT’S RESPONSE TO MOTION TO STR1KE
AFFIRMATIVE DEFENSES
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State ofIllinois,
and pursuant to 35 Ill.
Adm.
Code
10 1.500, requests leave to file a Reply to Respondent’s Motion to Strike Affirmative Defenses
and in support thereof, states as follows:
1.
Many ofthe affirmative defenses filed by the Respondent were, as argued in the
Motion to Strike Affirmative Defenses, quite vague as to their basis.
As a result, the
Complainant was forced to assume the meaning of the affirmative
defenses in its Motion to
Strike Affirmative Defenses.
2.
On August 7, 2003, the Respondent filed a Response wherein it attempts to
further explain some ofits affirmative defenses.
3.
Because the Response clarifies the meaning of the affirmative defenses, the
Complainant requests leave to file a brief Reply to Respondent’s Response to Motion to Strike
Affirmative Defenses, attached to this Motion.
4.
Allowing the Complainant to file the Reply would avoid the material prejudice
that would result if the Respondent
is able to file vague affirmative
defenses and then c1arif~’
them after the Complainant is forced to respond to
the initial vague pleading,
with the result that
the Complainant
is then foreclosed from addressing what the Respondent really meant by the
affirmative defenses.
WHEREFORE, the Complainant, PEOPLE OF
THE STATE OF ILLINOIS, requests
leave to file the attached Reply to Response to Motion to Strike Affirmative Defenses.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.,
LISA MADIGAN, Attorney General
ofthe State ofIllinois
Environmental Bureau
188 W.
Randolph Street,
20th
Floor
Chicago, Illinois 60601
312
814-3532
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECEIVED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
AUG
20
2003
)
STATE OF ILLINOIS
Complainant,
)
Pollution
Control Board
)
PCB No. 02-3
v.
)
(RCRA
-
Enforcement)
)
TEXACO REFINING & MARKETING,
)
INC., a Delaware Corporation,
)
)
Respondent.
)
REPLY TO
RESPONSE TO MOTION TO
STRIKE
AFFIRMATIVE DEFENSES
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General ofthe
State ofIllinois, and for its Reply to Response to Motion to
Strike Affirmative Defenses, states as follows:
I.
AFFIRMATIVE DEFENSES REMAIN
INSUFFICIENT
A.
Seventh Affirmative Defense
The Respondent argues that because its
affirmative defenses attack allegations in the
Complaint, they are thus adequate affirmative defenses.
However, there must be some factual
and legal validity to the underlying defense.
For instance, in the Respondent’s attempt to justify
its
seventh affirmative defense, the Respondent states that it posed a “legal question”: If a facility
is
complying with one regulatory program, can it be held liable for violations under Section
12(a)
ofthe Act?
The Respondent then concludes that it may not, but
offers no further support or
rationale.
Response at 7.
There is no basis forthe Respondent’s conclusion.
It cannot be
disputed that facilities
are often regulated by more than one regulatory program.
Why is it that
1
somehow Section 12(a) is preempted by this other program?
Certainly there is nothing within
the Act or Board regulations that creates such an
exemption.
Apparently the Respondent
believes that there is something, somewhere, that creates
an exemption from liability under
Section
12(a) ofthe Act.
However, it must let the Complainant and the Board know what that
is
before it can claim it as an affirmative defense.
B.
Eighth
Affirmative Defense
The Respondent defends its eighth affirmative defense by arguing that it is analogous to
one upheld in People v.
Stein Steel Mills Services, Inc., PCB 02-1 (April
18, 2002).
It then
argues that its alleged compliance with interim status requirements and a permit shield it from
liability under
Section 12(a) and Part 620.
The Stein Steel Mills case involved an enforcement
action based, in part, on an alleged failure to have an adequate operating program to control
fugitive air emissions.
In that case the respondent raised an affirmative defense claiming that it
had, in fact, submitted compliant operating programs to the Illinois
EPA.
The case, therefore,
involved opposing allegations in the context ofa single regulatory requirement.
The Stein Steel Mills case is in no way analogous to the present case.
In this case, the
Respondent is attempting to
allege that somehow alleged compliance with
another
regulatory
program, the Resource Conservation and Recovery Act
(“RCRA”), excuses it from violations of
Section
12(a) and Part 620 ofthe Board rules.
The Stein Steel Mills case does not stand forthe
proposition that it is an acceptable defense that compliance with one regulatory program
automatically excuses noncompliance with another, separate program, or with an overarching
statutory prohibition such as that in Section
12(a) ofthe Act.
The question here is simple: Did the Respondent cause, threaten or allow water pollution?
2
The question is not whether the Respondent complied with RCRA requirements.
This
affirmative defense is insufficient.
C.
Ninth Affirmative Defense
The Respondent now also refines its ninth affirmative defense.
The Respondent argues
that because the releases that led to the groundwater contamination at the facility and the
groundwater contamination itself may have predated the Part 620 rules, that, therefore,
any
regulation is retroactive.
This is a novel, but incorrect, theory.
The Part 620 rules do not regulate
releases as such, but groundwater conditions.
It is utterly irrelevant to Part 620 when a release
may have occurred.
Similarly, it is not relevant that groundwater contamination may have
predated Part 620 standards.
The relevant consideration is the condition ofthe groundwater from
the
time the regulations were effective and thereafter.
The Board and the Illinois courts have repeatedly held that liability may arise when one
maintains a condition after a prohibition of that condition becomes effective.
Freeman Coal
Mining Cor~i
V.
Illinois Pollution Control Board, 21
Ill.App.3d
157, 313 N.E.2d 616
(5t1~
Dist.
1974);
Meadowlark Farms, Inc. v. Illinois Pollution Control Board,
17 Iii. App. 3d 851, 308
N.E.2d 829 (5th Dist.
1974);
People ofthe
State of Illinois
v. Peabody Coal Company, PCB 99-
134 at
11-12 (June
5,
1999).
The Respondent’s argument is not supported by the law.
This
affirmative
defense should, therefore, be stricken.
D.
Eleventh Affirmative Defense
The Respondent argues in support ofthe eleventh affirmative defense that a claim ofan
exceedance ofa TACO or PQL standard cannot form the basis fora Section
12(a) violation.
TACO standards are set to give guidelines as to
when a level ofa particular contaminant may
3
pose a risk to human health.
One ofthe ways to establish “water pollution” as defined at Section
3.545
ofthe Act is to
show that the contaminant discharge created a nuisance or rendered waters
harmful, detrimental or injurious to public health,
safety or welfare.
One may certainly conclude
that the fact that contaminant levels in groundwater exceeds TACO standards may support a case
for water pollution under Section
12(a).
The Complainant, however, is not seeking to impose penalties for an exceedance ofany
TACO standard in and of itself.
TACO is not an enforceable limit in that one could seek
penalties for the exceedance ofits
standards, but a set ofrisk-based remedial standards (unlike
the Part 620 standards and Section
12(a), which are enforceable).
However, that in no way
means that an exceedance ofa TACO standard isn’t relevant evidence that water pollution has
-
occurred.
There is absolutely no support for the Respondent’s assertion that one is forced to
disregard evidence ofTACO exceedances when making a case for water pollution under Section
12(a).
The gist ofthis argument seems to
be that one is safe from enforcement under Section
12(a) as long as one has created and allowed groundwater contamination that exceeds TACO
standards, or, at a minimum, that one could never cite the fact that contaminant levels exceed
TACO standards in a complaint orpresent such evidence at a hearing on a Section
12(a)
violation.
There is simply no basis for this argument.
The presence ofcontaminants at levels above TACO standards
is not the sole basis for
the water pollution allegation of the Complaint, but it certainly supports that allegation.
The
affirmative defense is
deficient and should be stricken.
E.
Fourth Affirmative Defense
The Respondent also seeks to bolster its independent contractor fourth affirmative
4
defense in the Response.
However, one case the Respondent offers in support ofits
independent
contractor defense actually struck similar affirmative defenses.
Cole Taylor Bank
v. Rowe
Industries, Inc., PCB 0 1-173 at 5-6 (June 6, 2003).
That case offers the Respondent no support.
The other cited case cast extreme doubt as to
the respondent’s ability to prevail
on such a
defense, due to the fact that one can be held liable for allowing an independent contractorto
violate the Act, but nonetheless allowed the defense to stand under the facts as pled in that case.
People v. Wood River Refining Company, PCB 99-120 (August 8, 2002).
The Board’s standard for an independent contractor defense has been whether one could
reasonably control the actions ofthe independent contractor in order to prevent the pollution.
See.
e.g.,
Roy K. Johnson v.
ADM-Demeter, Hoopeston Div., PCB
98-31 at 10~1
1
(January 7,
-
1999).
That being the standard, it follows that the Respondent must plead sufficient facts that
would demonstrate that it could not reasonably control the actions ofthe independent contractor
in order to have any chance at prevailing on that defense.
Respondent does not plead sufficient
facts.
Respondent argues that the sole fact that the wastes were produced by an independent
contractor sufficiently alleges a defense.
That does not meet the standard because, even if true,
that allegation would not show that the actions ofthe independent contractor were beyond the
control ofthe Respondent.
Similarly, it does not address the fact that the Respondent clearly
allowed the materials to remain on the land at
least eighteenyears
after the independent
contractor ceased operations, a fact the Respondent has admitted.
Response at 9-10 and Answer
at
16.
That alone would give rise to liability.
In this case, the Respondent has simply failed to
sufficiently allege a defense based on the actions ofan independent contractor.
5
F.
Factual Insufficiency
As
a
final matter, the Complainant appreciates the Respondent’s willingness to highlight
its admissions as to the presence ofnumerous contaminants in the groundwater at the facility in
excess ofTACO standards.
Response at
3-5.
How the Respondent believes that this bolsters its
defenses remains somewhat ofa mystery.
They certainly do not provide the factual basis for the
affirmative defenses as the Respondent claims.
Possibly, the Respondent feels that a
combination ofthe fact that the groundwater contaminants at the facility exceed TACO standards
and the Respondent’s incorrect theory that one can never look at TACO standards when
evaluating a case under Section
12(a) somehow shields the Respondent from liability.
To the
Complainant, however, the exceedances only demonstrate the extent, though not the full extent,
ofthe water pollution violations
attributable to the Respondent.
II.
CONCLUSION
As for the remaining affirmative defenses and issues, the Complainant rests on its Motion
to Strike Affirmative Defenses.
Because none of these affirmative defenses suffices to
state an
adequate defense, they should be stricken.
6
WHEREFORE, the Complainant, PEOPLE
OF THE
STATE OF
ILLINOIS, requests that
the Board issue an order striking the Respondent’s affirmative defenses.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.,
LISA MADIGAN, Attorney General
ofthe State ofIllinois
L~i~
Assistant
Environmental Bureau
188 W. Randolph Street,
20th
Floor
Chicago, Illinois 60601
312
814-3532
7
CERTIFICATE OF SERVICE
I, the undersigned, certify that on August 20, 2003 I have served the attached MOTION
FOR LEAVE TO FILE REPLY TO RESPONDENT’S RESPONSE TO MOTION TO STRIKE
AFFIRMATIVE DEFENSES by United States mail, postage prepaid, or hand delivery, upon the
attached Service List.