ILLINOIS POLLUTION CONTROL BOARD
September 18, 2003
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant, )
)
v. ) PCB 03-73
) (Enforcement - Land)
RIVERDALE RECYCLING, INC. and )
TRI-STATE DISPOSAL, INC., )
)
Respondents. )
ORDER OF THE BOARD (by M.E. Tristano):
On November 19, 2002, the People of the State of Illinois (People), filed a two-count
complaint against Riverdale Recycling, Inc., and Tri-State Disposal, Inc., (respondents). The
complaint alleged that respondents committed open dumping of waste and operated a waste
storage facility without a permit. On July 11, 2003, the respondents filed an answer to the
complaint and asserted to affirmative defenses. On August 12, 2003, the People filed a motion
to dismiss respondents’ affirmative defenses.
For the reasons stated below, the Board requires the respondents’ to submit a
supplemental answer plainly setting forth the facts justifying their affirmative defenses.
BACKGROUND
Respondents own and operate a waste transfer recycling business located at 13901 South
Ashland Avenue, Riverdale, Cook County. On June 24, 1998, the Illinois Environmental
Protection Agency (Agency) issued a permit to respondents authorizing them to operate a waste
transfer station for general municipal refuse and construction and demolition debris, and to
engage in recycling activities. The two-count complaint alleged violations of Section 21(a) and
21(d) of the Environmental Protection Act (Act). Briefly the two counts include:
Count I: Open dumping of waste: People alleged that respondents consolidated
waste from one or more sources at the site that did not fulfill the
requirements of a sanitary landfill, and respondents caused or allowed the
open dumping of waste.
Count II: Conducting a waste storage operation without a permit: People alleged
that respondents conducted a waste storage operation outside of the
permitted area, and therefore, in violation of their permit.
STANDARD
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In an affirmative defense, the respondent alleges “new facts or arguments that, if true,
will defeat … [complainant’s] claim even if all allegations in the complaint are true.” People v.
Community Landfill Co., PCB 97-193 (Aug. 6, 1998). The Code of Civil Procedure gives
additional guidance on pleading affirmative defenses. Section 2-613(d) provides, in part:
The facts constituting any affirmative defense … and any defense which by other
affirmative matter seeks to avoid the legal effect of or defeat the cause of action
set forth in the complaint, … in whole or in part, and any ground or defense,
whether affirmative or not, which, if not expressly stated in the pleading, would
be likely to take the opposite party by surprise, must be plainly set forth in the
answer or reply. 735 ILCS 5/2-613(d)(2002).
The Board’s procedural rules state the need for a factual basis to assert an
affirmative defense. (Section 103.204):
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 be known before hearing.
A valid affirmative defense gives color to the opposing party’s claim but then asserts new
matter which defeats an apparent right. Condon v. American Telephone and Telegraph Co., 210
Ill. App. 3d 701, 569 N.E.2d 518, 523 (2d Dist. 1991), citing The Worner Agency Inc. v. Doyle,
121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635 (4th Dist. 1984). A motion to strike an
affirmative defense admits well-pleaded facts constituting the defense, and attacks only the legal
sufficiency of the facts. “Where the well-pleaded facts of an affirmative defense raise the
possibility that the party asserting them will prevail, the defense shall not be stricken.”
International Insurance Co. v. Sargent and Lundy, 242 Ill. App. 3d 614, 630-631, 609 N.E.2d
842, 853-54 (1st Dist. 1993), citing Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847,
854, 539 N.E.2d 787, 791 (2d Dist 1989).
AFFIRMATIVE DEFENSES
On July 11, 2003, the respondents filed an answer to the complaint and affirmative
defenses. On August12, 2003, the People filed a motion to dismiss respondents’ affirmative
defenses. The following gives the arguments of the respondents and the People, and the Board’s
decision.
First Affirmative Defense
Respondents argue that the waste observed on December 2, 1999 and March 12, 2001,
outside of the permitted area was general construction and demolition debris which was
authorized for storage without a permit pursuant to Section 22.38 of the Act. Respondents,
therefore, argue that it is in compliance with the Act pursuant to Section 22.38 of the Act. Ans.
at 9-10.
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The People argue that respondents’ affirmative defense contains only a broad assertion
without supporting facts. To come under Section 22.38 of the Act, the People argue there are a
number of requirements which include: (1) the facility accept exclusively general construction
or demolition debris; (2) within 48 hours of the receipt of the debris that they be stored; (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 Agency. The People argue that respondent
did not allege that they complied with any of the requirements under Section 22.38.
Complainant, therefore, argue respondents affirmative defense fails to specify facts or arguments
required for pleading a claim or a defense, and should be dismissed. Mot. to Dismiss at 2-4.
The Board finds that respondents’ pleadings provide an insufficient factual basis upon
which it can rely to make an adequate determination of the validity of the affirmative defense.
The respondent presents only a conclusion of law which fails to satisfy the Board’s procedural
requirements as set forth in Section 103. 204. 35 Ill. Adm. Code 103.204. Therefore, the Board
requires a supplemental answer from the respondent outlining facts in support of the proposed
affirmative defenses.
Second Affirmative Defense
Respondents’ state that a pre-enforcement conference was held on September 15, 1999.
At the conference, respondents state that they were advised by Cliff Gould and James Haennicke
of the Agency that it was acceptable for respondents to store general construction and demolition
debris in any unpermitted area of the site pursuant to Section 22.38 of the Act as long as proper
notice was given to the Agency and proper procedures were followed. Respondents, therefore,
argue that its actions were both in compliance with Section 22.38 of the Act and were undertaken
in a manner specifically suggested and approved by the Agency. Ans. at 10
The People argue that the respondents did not allege they have taken any of the steps
required by Section 22.38 and that this affirmative defense does not contain any new facts or
arguments. The People argue that respondents merely allege they gained the knowledge of a
section of the Code and through virtue of this knowledge, they are in compliance. The People,
therefore, argue that this affirmative defense does not rise to the level of a new fact or argument
and as a result it should be dismissed. Mot. to Dismiss at 4-5.
The respondents’ pleading notes that they were following the advice of Agency
representatives that construction debris can be stored at an unpermitted site pursuant to Section
22.38 of the Act. But they do not specify how they complied with the numerous requirements
clearly annunciated in that Section. The Board requires a supplemental answer providing
additional facts in support of the second affirmative defense.
CONCLUSION
The Board grants the People’s motion to dismiss the respondents’ affirmative defense at
this time. It will allow the respondent 30 days from the date of this order, or until October 17,
4
2003 to provide the Board with a supplemental answer outlining additional facts in support of
each affirmative defense asserted.
IT IS SO ORDERED.
Chairman T.E. Johnson dissented.
Board Member G.T. Girard concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on September 18, 2003, by a vote of 4-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
