SEP
~
BEFORE THEILLINOIS POLLUTION CONTROL BOARD
1LUNO1~
STATEO
PEOPLE OF THE STATE OF II~LJNOIS,
)
pollutIOfl
Control
Board
)
Complainant,
)
vs.
)
TEXACO REFINING & MARKETING, INC.,
)
a Delaware Corporation,
)
)
Respondent.
)
To:
Christopher P. Perzan
Assistant Attorney General
Environmental Bureau
188 W. Randolph Street
20th Floor
Chicago, Illinois
60601
)
PCB No. 02-03
(RCRA
-
Enforcement)
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
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 September 2,
2003 filed with the Office of the Clerk of
the
Pollution
Control
Board
the
attached
OPPOSITION
FOR
LEAVE
TO
FILE
REPLY
TO
RESPONDENT’S RESPONSE TO MOTION TO
STEJIKE AFFIRMATIVE
DEFENSES, a copy of
which is hereby served on you.
Barbara A. Magel
Karaganis White & Magel
414 North Orleans Street
Suite 810
Chicago,Illinois
60610
312/836-1177
Fax:
312/836-9083
Chevron Environmental Services Company
BY:
Their Attorney
BEFORE THE ILLINOIS POLLUTION CONTROL
B~K~
IVED
PEOPLE OF THE STATE OF ILLLINOIS,
)
SEP
022003
Corn
lainant
STATE OF ILLINOIS
p
/
Pollution Control Board
vs.
)
PCB No. 02-3
(RCRA
-
Enforcement)
TEXACO REFINING & MARKETING, INC.,
)
a Delaware Corporation,
)
)
Respondent.
)
OPPOSITION FOR LEAVE TO FILE REPLY TO
RESPONDENT’S
RESPONSE TO MOTION TO STRIKE
AFFIRMATWE DEFENSES
NOW COMES RESPONDENT,
Chevron
Environmental
Service, Inc.
(“CESC”),
for its predecessor
Texaco Refining & Marketing, Inc., by
its attorneys and pursuant to
35
Illinois
Administrative
Code
(“IAC”)
101.500
hereby
responds
in
opposition
to
Complainant’s Motion for Leave:
1)
35
IAC
101.500(e)
provides
that
a
moving
party,
in
this
case
the
Complainant, will ~
have the right to file a reply, except as permitted by the Board or
hearing officer to
prevent material
prejudice.
(emphasis
added).
In
this instance,
no
prejudice, material
or otherwise,
exists
and
therefore
Complainant’s
Motion must
be
denied.
2)
In order
to overcome the explicitly
stated filing limitation in the Board’s
procedural
rules,
Complainant
asserts
in its
Motion
for
Leave
that
it
was
somehow
surprised, and therefore materially prejudiced by Respondent’s Response to the Motion
to Strike.
However,
once CESC’s Response to the Motion to Strike and Complainant’s
proffered Reply are examined, it is clear that no surprise in fact occurred.
Complainant
is
simply
looking
for
an
extra
opportunity
to
again
present
its
Motion
to
Strike
arguments
to
the
Board.
In promulgating
35
IAC 101.500(e),
this
is just
the
type
of
repetitive pleading which the Board sought to avoid.
3)
Board precedent has established that the party wishing to file a reply must
demonstrate that it will suffer material prejudice if its filing is not permitted.
Illinois
v.
Peabody Coal
Company
PCB
99-134 (June 5,
2003).
A mere assertion that such prejudice
will occur is insufficient.
Illinois
v.
Skokie Asphalt
Co.
Inc.,
et al.
PCB 96-98
(June 5,
2003)
and
City of Kankakee v. County of
Kankakee,
et al.
PCB 03-125, 03-133, 03-134, 03-135 (May
1, 2003).
In this instance, Complainant has not offered any explanation as to how it will
be
prejudiced.
Instead
Complainant
has
merely
stated
it
was
surprised
by
CESC’s
Response to the Motion
to Strike.
However, as shown herein, that assertion of surprise
is groundless.
Further the arguments presented in Complainant’s proffered Reply were
included in its Motion to Strike so no prejudice will result in denying leave to file here.
Young
v.
Gilster-MaryLee
Coip.,
PCB 00-90
(June
21,
2001).
Complainant
has failed to
meet its burden to demonstrate that any material prejudice would occur in this instance,
and therefore its Motion for Leave must be denied.
4)
As a basis for asserting it was somehow prejudiced, Complainant attempts
to make one
point
-
that
is that in its Response,
CESC supposedly
somehow clarified
the
meaning
of
its
affirmative
defenses
and
Complainant
was
surprised.
However,
CESC did
not present
any new
material
in its Response
to the
Motion
to
Strike, but
merely
placed
its Affirmative Defenses in the context
of the Answer.
Complainant
is
basically asserting that it was somehow surprised that the entire Answer would be used
in evaluating the
adequacy
of defensive
pleadings.
Yet, that
is
precisely
what
Board
precedent
contemplates.
Under
these
circumstances,
Complainant
will
suffer
no
prejudice due to denial of its Motion for Leave.
Illinois v. Poland, et al.,
PCB 98-145 (May
3,2001).
Clarification does not constitute material prejudice.
5)
For purposes
of trying
to show
surprise,
Complainant
assumes
that
its
improperly focused reading of the Affirmative Defenses will be accepted by the Board
as appropriate.
Complainant
simply chose to read the Defenses independently
of the
Complaint and Answer,
in spite of clear Board precedent to the contrary.
Illinois v.
QC
Finishers,
Inc.
PCB 01-7 (June
19,
2003).
In contrast, in its Response to the Motion
to
Strike,
cESC
demonstrated,
that
once
read
in
context
as
required,
the
Affirmative
Defenses are adequately pled.
No novel material
was presented in CESC’s Response to
-2-
the Motion to Strike, as Complainant now argues.
The pleadings
on file were simply
presented as a whole as required by previous Board decisions.
6)
In attempting to support
a need to re-present its arguments, Complainant
has done nothing more than say its speculation as to the possible
meanings of CESC’s
Affirmative Defenses created by reading these Defenses in isolation didn’t prove to be
entirely correct.
To allow Complainant
to file a Reply here condones the technique of
misinterpreting pleadings in order to get an extra opportunity
to have the last word; an
opportunity
the
Board has
generally
eliminated.
The fact that
Complainant
guessed
wrong is because it declined to read the Answer as a whole, is not an adequate grounds
for a finding material
prejudice.
7)
Having
disregarded
the
appropriate
manner
of
reviewing
affirmative
defenses,
Complainant
now states
it
is
surprised
by
Respondent’s
use
of
the
entire
Answer in its Response and therefore entitled to try again.
Complainant’s
approach is
merely a ruse to obtain another chance to present arguments it could, and in many cases
did, present in its original Motion to Strike.
The Board has rejected such arguments as
allowable bases for extra pleadings.
Illinois v.
Poland, et al.,
supra.
Complainant
simply
finds itself confronted with a stronger demonstration of the adequacy of the Affirmative
Defenses than it anticipated,
and
seeks
another chance
to
bolster its case
through
its
Motion for Leave to File a Reply.
Under
such circumstances, the Motion for Leave to
File must be denied in accordance with 35
IAC 101 .500(e).
8)
The
Reply
included
with
Complainant’s
Motion
for
Leave
clearly
demonstrates
the
lack
of
material
prejudice
here.
Complainant’s
proposed
Reply is
nothing more than repetition of arguments presented in its original Motion to Strike, in
a few instances, with added citations to bolster those arguments.
Rule
101.500(e) was
promulgated to preclude such attempts by moving parties to get the last word.
9)
Reviewing Complainant’s Reply arguments it is clear that Complainant
is
trying
to
side-step
the
limitation
of
35
IAC
101.500(e)
with
groundless
assertion
of
surprise to shore-up its Motion to Strike arguments.
-3-
a)
Seventh
and
Eighth
Affirmative
Defenses
-
With
these
two
Defenses,
Respondent
has presented a
legal question
as to
whether
a violation of
Section
12(a)
may
be
asserted
despite
compliance
with
regulations
and
permit
provisions
which
speak
specifically to
the conditions
underlying
the
allegation
of
violation.
Again,
this
is
a
legal
question
of
first
impression for
the
Board
and
it merits
consideration
in
its
full
factual
context
at
hearing.1
In its proffered
Reply,
Complainant
merely
asserts
that these Defenses may not prevail, but offers no reason or precedent in
support
of
that
conclusion.
Further
no new
argument,
other
than that
asserted in the original Motion to Strike is presented.
In
defending its
right
to
present
this
Defense
in
the
face
of the
Motion to Strike, no new information was provided in the Response to the
Motion to Strike which could be the basis
of Complainant’s surprise with
respect to these Defenses.
In its Response to the Motion to Strike, CESC
simply reviewed the allegations already
on file and
provided
supportive
legal precedent and Complainant does not assert any surprise or prejudice
in its Reply attached to its Motion
for Leave.
No material
prejudice
has
occurred and the Motion for Leave must be viewed as unfounded.
b)
Ninth Affirmative Defense
-
In its Answer and Response, Respondent has
argued that 35 IAC 620 may not be applied retroactively to demonstrate a
violation
of
Section
12(a)
of the
Environmental
Protection
Act
(“Act”).
Nothing new was added
to that statement
of defense in the Response to
the
Motion
to
Strike.
Simply
put,
Section
12(a)
presents
a
two
part
prohibition
on
contamination of waters of the State; risk to health or the
environment
must
be
shown,
p~ a
violation
of
some
regulation
or
Complainant’s argument
as to the
People v. Stein Steel Mills Services,
Inc.,
PCB
02-1
(April 8, 2002)
in their proposed
Reply is not relevant to the argument CESC presented in
its
Response
to the
Motion
to
Strike.
In
its
Response,
Stein
Steel,
supra
was
cited
as
support
for
allowing
an
affirmative
defense
premised in
compliance
with regulations
and
permit
requirements
to
go
forward.
Under
Stein
Steel,
-4-
standard.
Here, no allegation of risk or damage has been made.
Instead,
the
Complainant
has
chosen
to
reply
upon
alleged
violations
of
regulations
or standards
which had
~
been promulgated
at the
time
of
the alleged violation, as its basis for its claim.
In its proffered Reply, Complainant cites to two
cases as supposed
support for its conclusion that
the Ninth
Affirmative Defense
is without
legal basis.
In
Meadowlark
Farms,
Inc.
v.
Illinois Pollution
Control Board,
17
Ill. App. 3d 851
(February 22,
1974) the question was one of ownership of
minerals
held on
a
property
and
responsibility
for discharge therefrom.
The instant factual
situation
is
readily
distinguishable.
As
stated in the
Answer,
the
coke
material
here
was
the
property
of
an
independent
contractor
and
no
discharge
has
been
alleged.
Therefore
Meadowlark
Farms,
supra
provides
no
precedent
for
a
decision
on
the
Affirmative
Defense at issue here.
Similarly the other case cited by
Complainant offers no support
to
its
legal
argument.
Finally,
these
arguments
on
legal
adequacy
were
included
in
the
Motion
to
Strike
and
there
is
no
reason
to
allow
Complainant to re-argue them through a specially allowed reply.
The question
presented by
the Affirmative
Defense then becomes,
can
a regulation,
i.e.
35
IAC 620 which was not promulgated at the time of
the alleged violations be used as a basis for a finding of violations or does
that
constitute
retroactive
application
of
a
regulation.
This
is
a
legal
question of first impression for the Board, although precedent has denied
retroactive
application of
other regulations
in similar contexts,
Illinois
v.
Peabody Coal, PCB 99-134
(June 5, 2003).
Again no new information was
provided in CESC’s Response to the
Motion to Strike with
respect to this
Defense, so no surprise or resultant prejudice can be shown.
In its Reply,
supra,
the
Board
decided
that
under
appropriate
circumstances,
such
compliance
may
constitute
an
affirmative defense.
-5-
Complainant
has merely
sought
to reinforce
the
arguments made
in
its
Motion to Strike.
The Complainant’s
Reply represents precisely the type
of repetitive pleading to be avoided under 35 IAC 101.500(e).
c)
Eleventh
Affirmative
Defense
-
The
Tenth
Affirmative
Defense
also
presents
a legal question
of first
impression:
may remedial objectives
be
taken from
TACO and used
as a basis for a
Section
12(a) violation.
As
stated
in the Answer, and again in the Response to the Motion
to Strike,
TACO
remedial objectives are
not regulatory
standards
for determining
whether violative contamination exists, rather they are target values to be
achieved
in certain
site-specific
contexts.
Further,
the
TACO
standards
cited
in
the
Complaint
and
relied
upon
by
Complainant
are
subject to
modification under
Tiers
2 and
3
of TACO itself, and therefore
again, are
not controlling
standards
or
universally
evidence
that
violative
ground
water pollution
has
occurred as
Complainant
argues.
Under TACO
it is
possible that a Tier 1 exceedence would
occur and no violation of Section
12(a)
exists.
The
Affirmative
Defense
presents
the
basic
question
of
whether such objectives may by themselves form the basis for a finding of
a 12(a) violation as alleged in the Complaint.2
There is no new material presented
in the Response to the Motion
to
Strike
or
Complainant’s
offered
Reply
with
respect
to
this
Defense.
Again, Respondent has merely presented the Defense in light
of the entire
Answer.
Apparently
unhappy
with
Respondent’s
Response
arguments,
Complainant
seeks to try again.
Complainant can not have been surprised
or prejudiced by that presentation.
d)
Fourth Affirmative
Defense
-
Complainant
does
not argue
that
it
was
surprised
or
that
the
Fourth
Affirmative
Defense
was
clarified
in
the
Response
in
seeking
to
file
its
Reply
to
CESC’s
Response
as
to
this
-6-
Defense.
Instead,
Complainant
shows
its
actual
purpose
in
filing
its
Motion for Leave, the desire to present additional arguments having seen
the Response to its initial Motion to Strike.
That is
precisely what 35
IAC
101.500 seeks to preclude.
Complainant seeks to use its Motion for Leave as an opportunity
to
argue
the
factual
elements
underlying
the
Fourth
Defense.3
Implicitly
agreeing that the Defense
is
legally viable, Complainant now asserts that
Respondent
has
not
demonstrated
all
of the
facts
as
to
control
of
the
independent
contractor
to
support
a
ruling
in
its favor
on
the
Defense.
However, such facts may be elicited at hearing.
The Answer adequately
raises
the
independent
contractor
issue
for
purposes
of
pleading
the
Affirmative
Defense.
Furthermore,
Complainant’s
factual
statements
actually
support
allowing
Respondent
to
proceed
with
the
Fourth
Affirmative
Defense
so
that
a
full
and
fair
hearing
on
the
specific
circumstances of the problem can be had.4
10)
Complainant,s last section in
its proposed Reply again aptly demonstrates
its real reason for seeking to file despite the Board’s rule.
In that section, Complainant
points
out
the
admission
of
TACO exceedences
and
decries
the
lack
of
relationship
between those
admissions
and
the
Affirmative
Defense.
These
statements
illustrate
Complainant’s
failure
to
understand
the
way
in
which
the
adequacy
of
affirmative
defenses is determined.
Respondent admitted to the exceedences of the TACO levels in
2
In
the
Cole Taylor Bank v. Rowe Industries, Inc.,
PCB
01-173
(June
6, 2003) the Board found that such
a defense might be sustainable.
Respondent has not taken issue with the
Roy K.
Johnson v. ADM-Deineter Hoopeston Div.,
PCB 98-
31
(January
7, 1999)
holding that the
question of control must be addressed
to prevail on an affirmative
defense based on the acts or omissions
of an independent contractor.
CESC understands that the question
of control will have
to
be
addressed
in
its
factual presentation
at hearing.
However,
the
Affirmative
Defense has been adequately pled in the Answer.
In.
its
proposed
Reply,
Complainant
states
the materials
were
on
the
Site for
at
least eighteen
years.
The materials at issue were the product
of an independent contractor and the Act does not speak
to
the
presence of such product.
-7-
its
Answer; that
is not new
information.
For purposes
of examining
the Affirmative
Defenses,
those
admissions
are
taken
into
consideration
as
was
done
in
CESC’s
Response to the
Motion to
Strike.
The Affirmative Defense
is then viewed
as a
legal
argument
which
precludes
the
imposition
of
liability
despite
those
admitted
exceedences.
That Complainant
is now attempting to cite the admission as the basis
of
surprise
demonstrates
that
it
never
examined
the
Affirmative
Defenses
within
the
context of the Answer as a whole.
Complainant
can not assert material prejudice based
on its own failure to follow Board precedent.
11)
The Affirmative Defenses which Complainant
has placed at issue present
legal questions
of first impression for the Board.
Each merits providing an opportunity
for examination
in the fully
presented factual context
afforded at hearing and
should
not be stricken prematurely.
The
Affirmative
Defenses have been
adequately pled as
demonstrated in the Response to the Motion to Strike.
In the absence of any showing of
material
prejudice
Complainant
should
not
be
granted
opportunity
to
reiteratively
attach such Affirmative Defenses.
WHEREFORE, Respondent respectfully requests
that Complainant’s
Motion for
Leave to File a Reply be denied.
In the alternative, if Complainant
is permitted to file a
Reply, Respondent hereby requests leave to file a Sur-Reply.
RESPECTFULLY SUBMITTED,
TEXACO REFINING
& MARKETING, INC.
a Delaware Corporation
~
~
Barbara A. Magel
John
Kalich
Karaganis,
White
& Magel Ltd.
414 North Orleans Street
Suite 810
Chicago, Illinois 60610
312-836-1177
Smtex67.doc
-8-
CERTIFICATE OF SERVICE
I, the undersigned, certifythat I have served the attached OPPOSITION 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
following
persons:
VIA
HAND
DELIVERY
Dorothy M.
Gunn
Clerk ofthe Board
illinois Pollution Control Board
100 W. Randolph Street,
11th
Floor
Chicago, Illinois
60601
VIA HAND DELIVERY
Christopher P. Perzan
Assistant Attorney General
Environmental Bureau
188 W. Randolph Street
20th Floor
Chicago, Illinois
60601
VIA HAND
DELIVERY
Bradley Halloran
Hearing Officer
illinois Pollution Control Board
100 W. Randolph Street,
11th
Floor
Chicago, illinois
60601
VIA U.S. MAIL
John A. Urban, Civil Chief
Will County State’s Attorney’s Office
Will County Courthouse
14 W. Jefferson
Joliet, illinois
60432
B~rbara
A. Magel
Attorney
Dated:
September 2, 2003
samltexfilg