2

BACKGROUND

 

The Site

 

Texaco was a Delaware corporation and operated an oil refinery from 1910 to 1981

located 301 West 2nd Street, Lockport in Will County. Comp. at 2. Texaco alleges that the

corporate entity, Texaco Refining & Marketing, Inc., was succeeded by Chevron Environmental

Services Company (Chevron). Ans. at 2. The People allege Texaco closed five Resource

Conservation and Recovery Act (RCRA) interim waste disposal units at the facility in 1987.

Comp. at 2. Texaco alleges the five units closed in 1987 consisted of one disposal unit and four

treatment units. Ans. at 2. The parties agree Texaco performed the closure in accordance with

an approved plan. Comp. at 2; Ans. at 2. The parties agree that under the closure plan, Texaco

monitors and submits groundwater reports to the Environmental Protection Agency (Agency).

Comp. at 3; Ans. at 3. The parties agree that in 1998 and 1999, Texaco detected constituents in

eight monitoring wells.

Id.

; Comp. Exh. A. Additionally, Texaco’s groundwater monitoring

reports contained physical descriptions of groundwater samples. Comp. at 4, Exh. B; Ans. at 5.

For example, the reports indicated water samples were turbid, brownish yellow or grayish, had

oil droplets, film or sheen and/or hydrocarbon odor.

Id

.

 

Agency Action

 

Texaco agrees that it received a notice of violation letter on July 21, 1999, regarding the

groundwater contamination. Comp. at 4; Ans. at 5. Texaco also agrees that it met with the

Agency on October 6, 1999, and that subsequent to the meeting Texaco submitted compliance

commitment agreements that were rejected by the Agency.

Id

. Texaco alleges the Agency

indicated that the proposed agreements were rejected merely because the People wanted to

collect a penalty, as opposed to any technical deficiency. Ans. at 6. Texaco agrees that it

received notices of intent to pursue legal action from the Agency on December 14, 1999, and

that the parties held a meeting concerning these letters on January 18, 2000. Comp. at 4-5; Ans.

at 6.

 

The parties agree that the Agency inspected the Texaco facility on July 28, 1999. Comp.

at 14; Ans. at 16. The People allege the Agency inspector observed coke fines and black tar-like

material scattered across the ground in various areas over approximately an acre of the site.

Comp. at 14. The People allege that coke was previously processed at the site until

approximately 1981.

Id

. Texaco admits that coke was previously processed at the site until

1981, and adds that an independent contractor, Great Lakes Carbon, was the processor. Ans. at

16. The parties agree that on September 28, 1999, Texaco shipped coke fines and tar-like

material to Allied Waste Services located in Morris, Grundy County, listing the waste as

petroleum coke contaminated soil. Comp. at 14; Ans. at 16.

 

Exceedances of Groundwater Quality Standards

 

The People state that Texaco’s 1998 fourth quarter groundwater monitoring results show

Class I groundwater quality standards were exceeded for the following chemical constituents in

various monitoring wells at the site: arsenic, lead, benzene, benzo(a)pyrene, bis(2-ethylhexyl)-

---

 

3

pthalate, chromium, ethylbenzene, toluene and xylenes. Comp. at 9; Comp. Exh. A. Texaco

admits these exceedances occurred, but denies they constitute violations of Class I groundwater

quality standards. Ans. at 10. The People state that Texaco’s 1998 fourth quarter groundwater

quality monitoring results show Class II groundwater quality standards were exceeded for the

following constituents at the site: lead, benzo(a)pyrene, and bis(2-ethylhexyl)-pthalate. Comp.

at 10; Comp. Exh. A. Texaco also admits these exceedances occurred but denies they constitute

violations of Class II groundwater quality standards. Ans. at 11.

 

APPLICABLE LAW

 

Section 12(a) of the Act provides:

 

No person shall: (a) cause or threaten or allow the discharge of any contaminants

into the environment in any State so as to cause or tend to cause water pollution in

Illinois, either alone or in combination with matter from other sources, or so as to

violate regulations or standards adopted by the Pollution Control Board under this

Act. 415 ILCS 5/12(a) (2002).

 

Section 620.405 of the Board’s Groundwater Quality Regulations provides:

 

No person shall cause, threaten or allow the release of any contaminant to

groundwater so as to cause a groundwater quality standard set forth in this subpart

to be exceeded. 35 Ill. Adm. Code 620.405.

 

Section 21(a) of the Act provides:

 

No person shall: (a) cause or allow the open dumping of any waste. 415 ILCS

5/21(a) (2002).

 

STANDARD

 

The 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 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).

 

DISCUSSION

 

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4

Count I – Water Pollution

 

In count I, the People allege that Texaco caused or allowed water pollution in violation of

Section 12(a) of the Act. 415 ILCS 5/12(a) (2002). The People also allege Texaco violated

Section 620.405 of the Act because contaminants in the groundwater sampled at the Texaco

facility exceed Class I and Class II groundwater quality standards (Class I and Class II

groundwater quality standards are found at 35 Ill. Adm. Code 620.410 and 610.420,

respectively). 35 Ill. Adm. Code 620.405. The People further allege that Texaco violated

Section 12(a) of the Act because the contaminants in the sampled groundwater exceed one or

more of the following objectives or detection limits: (1) Tier 1, Class I Groundwater

Remediation Objectives found at 35 Ill. Adm. Code 742, Appendix E; (2) Tier 1, Class II

Groundwater Remediation Objectives found at 35 Ill. Adm. Code 742, Appendix B, Table E; (3)

two times the PQL:

1

and (4) the PQL where more than one constituent in a well is above the

PQL.

2

Texaco answered that the alleged violations are legal conclusions and neither admitted

nor denied the allegations.

 

Count II- Open Dumping

 

In count II, the People allege that by allowing coke fines and tar-like material to be

disposed of or stored on the ground in areas covering approximately an acre of the site, Texaco

caused or allowed the consolidation of waste at the site. Comp. at 17. Texaco denies that it

allowed the consolidation of waste at the site. Ans. at 19. The People also allege that from

July 28, 1999 until September 28, 1999, Texaco caused or allowed the open dumping of the coke

fines and tar-like material at the site, a site that did not fulfill the requirements of a sanitary

landfill, in violation of Section 21(a) of the Act. 415 ILCS 5/21(a); Comp. at 17. Texaco denies

these allegations. Ans. at 19.

 

Affirmative Defenses

 

After its admissions and denials, Texaco presented thirteen affirmative defenses to the

alleged violations. The People have moved to strike all thirteen affirmative defenses. First the

1

Section 620.110 of the Board’s Groundwater Quality Regulations defines PQL as follows:

“’Practical Quantitation Limit’ or ‘PQL’ means the lowest concentration or level that can be

reliably measured within specified limits of precision and accuracy during routine laboratory

operation conditions in accordance with ‘Test Methods for Evaluating Solid Wastes,

Physical/Chemical Methods’, EPA Publication No. SW-846, incorporated by reference at

Section 620.125.” 35 Ill. Adm. Code 620.110.

2

Texaco’s Agency approved post closure plan establishes a tolerance range of two times the

PQL. An exceedance occurs where: (1) two immediately consecutive samples exceed the

tolerance range for one value; or (2) any two or more parameter values for a single well exceed

the established PQL. Comp. at 12.

---

 

5

Board will address the affirmative defenses alleged by Texaco, the arguments presented by

both parties, and then strike allegations that have no merit. The affirmative defenses are as

follows:

 

1. The People’s request for injunctive relief is moot because the alleged illegal

activities have ceased or no longer exist;

 

2. The People are not entitled to costs under the Act;

 

3. Because Texaco has voluntarily installed ground water remedial systems, any

penalty imposed would not serve to bring Texaco into compliance with the Act

and would therefore be in appropriate;

 

4. Because the coke fines at the site were produced by an independent contractor,

they are not “waste,” and their presence on the site does not constitute “open

dumping” by Texaco;

 

5. Because Texaco had already entered into a contract for the sale and reuse of some

of the coke fines, a penalty is not appropriate under the Act;

 

6. The State’s claims are barred by estoppel;

 

7. Because Texaco was in compliance with interim status and regulatory ground

water requirements when the alleged violations occurred, Texaco did not violate

the Act;

 

8. The Board’s ground water standards found at 35 Ill. Adm. Code 620 did not apply

to Texaco while Texaco was in compliance with interim status ground water

regulatory requirements, and later a permitted groundwater management zone;

 

9. Application of the Board’s ground water standards found at 35 Ill. Adm. Code

620 would constitute retroactive regulation in violation of Texaco’s due process

rights;

 

10. Application of the Act’s prohibition against open dumping would constitute

retroactive regulation in violation of Texaco’s due process rights;

 

11. Violations of Tiered Approach to Corrective Action Objectives (TACO)

remediation objectives (35 Ill. Adm. Code Part 742) and PQLs cited by the People

are not enforceable standards in this matter and cannot form the basis of a

violation of the Act; further, TACO remediation objectives are not applicable to

the site because the site is subject to a federally delegated program;

 

  

  

12. Section 49(c) of the Act provides Texaco with a prima facie defense to any and all

alleged violations of groundwater standards at the site; and

 

---

 

6

13. Texaco reserves the right to

assert additional defenses as

development of this matter continues.

 

First Affirmative Defense – The People’s Request for Injunctive Relief is Moot

 

The People argue Texaco’s mootness claim does not constitute an affirmative defense

because it defends against relief sought, not liability. Mot. to Strike at 4. The People contend

this defense raises a mitigation factor, which the Board has previously determined is not an

affirmative defense.

Id

.;

citing

People v. Geon Co., Inc., PCB 97-62 (Oct. 2, 1997). The People

also note an appellate court has held that the argument that an illegal activity has stopped is not a

defense to a request for injunctive relief when a party is seeking a statutorily authorized

injunction. Mot. to Strike at 4;

citing

Village of Riverdale v. Allied Waste Transportation, Inc.,

334 Ill. App. 3d 224, 231, 777 N.E.2d 684, 690 (1st Dist. 2002). The People argue that for these

reasons Texaco’s first alleged affirmative defense is not proper and should be struck.

 

Texaco argues that the People have no legal basis for a claim of injunctive relief because

all of the alleged violations have been resolved to the satisfaction of the Agency. Resp. at 12.

Texaco further argues that Village of Riverdale is distinguishable from the present situation

because in that case, ongoing violations were possible whereas here the alleged violations no

longer exist. Resp. at 12. Texaco illustrates this point by arguing that 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 Agency-approved plans.

Id

. Texaco argues

there is no current violation, and thus, the People’s claim for injunctive relief is moot.

 

The Board finds that the issue of whether a claim for injunctive relief is moot pertains to

remedy, not the cause of action. The fact that Texaco may have subsequently complied does not

defeat the People’s claims of water pollution or open dumping. The Board finds that Texaco’s

first alleged affirmative defense is not an affirmative defense and grants the People’s motion to

strike this affirmative defense. The Board notes that nothing precludes Texaco from raising this

information in a remedy analysis as the information relates to Section 33(c) and 42(h) factors. .

 

Second Affirmative Defense – Complainant is Not Entitled to an Award of Costs

 

The People argue that a mere denial of well-plead facts does not constitute an affirmative

defense. Mot. to Strike at 5;

citing

People v. Wood River Refining Co., Farmer’s State Bank,

PCB 99-120 at 6 (Aug. 8, 2002). Rather an affirmative defense must raise a new matter that, if

true, defeats a complainant’s claim. The People argue that Texaco’s second alleged affirmative

defense merely states the People are not entitled to costs under Section 42(f) because they do not

meet the required conditions. Mot. to Strike at 5; 415 ILCS 5/42(f) (2002).

 

Texaco responds that the People have not claimed that the alleged violations are willful,

repeated or knowing, as required for the People to collect costs under Section 42(f) of the Act.

415 ILCS 5/42(f) (2002). Therefore, Texaco contends, the People can make no claim for costs

under the Act. Resp. at 13.

 

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7

The Board finds that Texaco has not alleged any new facts in this alleged affirmative

defense that if true may defeat the People’s claims of groundwater contamination and open

dumping even assuming all of the allegations in the complaint are true. Whether the People are

entitled to costs is a determination that is made separate from and subsequent to a finding of

violation. The Board grants the People’s motion to strike this defense.

 

Third Affirmative Defense – Texaco’s Voluntary Actions at the Site Render Any Penalty

Inappropriate

 

In its third alleged affirmative defense, Texaco argues that because it voluntarily installed

groundwater remedial systems at the site and has continued to comply with all Agency

requirements, any penalty imposed would be inappropriate under the Act. Ans. at 20-21.

Texaco did not address this affirmative defense in its response.

 

The People contend this alleged affirmative defense does not raise any defense to liability

and should therefore be struck. Mot. to Strike at 5. The People argue that Section 33 of the Act

provides that “[i]t shall not be a defense to findings of violations of the provisions of the Act or

Board regulations or a bar to the assessment of civil penalties that the person has come into

compliance subsequent to the violation” except where an applicable statute of limitations bars

the action.

Id

.;

citing

415 ILCS 5/33(a) (2002). The People further contend that Texaco did not

allege that it came into compliance; merely that it attempted to address some violations. Mot. to

Strike at 5-6.

 

The People state that this defense, that Texaco exercised due diligence in addressing the

alleged violations, simply raises mitigation factors. Mot. to Strike at 6. The People note that due

diligence is one of the factors the Board considers when determining the appropriate penalty

amount after finding liability. 415 ILCS 5/42(h)(2) (2002). The People argue the Board has

found that penalty mitigation factors are not affirmative defenses and has struck them when

raised as such. Mot. to Strike at 6;

citing

People v. QC Finishers, Inc., PCB 01-7 at 5 (June 19,

2003); People v. Geon Co., Inc., PCB 97-62 (Oct. 2, 1997). The People contend that for these

reasons Texaco’s third alleged affirmative defense does not constitute a proper affirmative

defense and should be struck. Mot. to Strike at 6.

 

The Board finds that voluntary compliance subsequent to a finding of violation is not an

affirmative defense. Voluntary compliance relates to the issue of remedy and not to the cause of

action. Information relating to Texaco’s voluntary compliance may be raised during the remedy

analysis. The Board grants the People’s motion to strike Texaco’s third alleged affirmative

defense.

 

Fourth Affirmative Defense – Independent Contractor Defense

 

The People contend that Texaco’s fourth alleged affirmative defense does not raise any

new matters that, if true, would defeat the People’s claims. Mot. to Strike at 6-7. Furthermore,

the People argue this alleged affirmative defense is vague and should be stricken. Mot. to Strike

at 7.

 

---

 

8

Texaco argues the state’s claims in count II are barred because the materials

deposited do not constitute “waste” within the meaning of Section 3.53 of the Act because the

coke materials were in fact a product held for sale for recycling. Resp. at 10. Texaco further

contends that an independent contractor is responsible for processing the coke fines found at the

site.

Id

. Texaco contends the Board has recognized the independent contractor affirmative

defense in the past. Resp. at 10;

citing

People v. Wood River Refining Co., PCB 99-120 (Aug.

8, 2002). Texaco argues it has properly pled this two-fold affirmative defense and it should not

be struck. Resp. at 11.

 

  

The Board has found that owners’ use of independent contractors may relieve the owner

of liability under the Act, but owners can still be liable for the actions of independent

contractors. Wood River Refining, slip op. at 10. The Act makes it unlawful to “cause” or

“allow” pollution. Furthermore, a person can cause or allow a violation of the Act without

knowledge or intent. County of Will v. Utilities Unlimited, Inc., AC 97-041, slip op. at 5 (July

24, 1997). The determinative question is whether the “respondent is in such a relationship to the

transaction that it is reasonable to expect him to exercise control to prevent pollution.” Wood

River Refining, slip op. at 1-0;

citing

EPA v. James McHugh Construction Co., PCB 71-291

(May 17, 1972).

 

Regarding the definition of “waste,” what Texaco claims it intended to do with the coke

fines at some later date is not dispositive of whether the materials constitute waste.

See

IEPA v.

Springer, AC 02-7, slip op. at 14 (Aug. 8, 2002). However, if Texaco can show that the coke

fines present on the site do not constitute waste under the meaning of the Act, or that Texaco

could not have reasonably been expected to exercise control to prevent the pollution, Texaco

may be able to prevail on count II of the complaint. Accordingly, the Board denies the People’s

motion to strike Texaco’s fourth alleged affirmative defense.

 

Fifth Affirmative Defense – Intent to Sell Coke Fines for Reuse Renders Any Penalty

Inappropriate

 

Texaco argues that because it intended to sell some of the coke fines for reuse before the

Agency issued any notice of violation, no penalty is appropriate under the Act. Ans. at 21.

 

The People assert that the allegations in Texaco’s fifth alleged affirmative defense, like

those in the third, are not defenses to liability, are not proper affirmative defenses, and should be

struck. Mot. to Strike at 6. Similarly, the People state Texaco’s fifth affirmative defense raises

mitigation factors that may be raised by Texaco in the remedy phase of this proceeding, should

there be one.

Id

.

 

The Board finds Texaco’s fifth affirmative defense addresses penalty rather than the

cause of action. Accordingly, the Board grants the People’s motion to strike this defense.

 

Sixth Affirmative Defense – Estoppel

 

Texaco alleges that the People’s claims are barred by the doctrine of estoppel. Ans. at

21. Texaco contends that the People knew of the violations alleged in count II of the complaint

---

 

9

for years without asserting that any violation existed.

Id

. Texaco claims that because the

People asserted that coke fines have been present on the site since 1981 but did not raise the

issue until 1999, the People are estopped from asserting the alleged violations in count II after 18

years. Resp. at 11.

 

The People assert that Texaco has not properly pled the affirmative defense of estoppel.

The People contend that estoppel requires a positive act by state officials that induced action by

an adverse party in circumstances where it would be inequitable to hold that party responsible

for the action. Mot. to Strike at 7;

citing

Pavlakos v. Dept. of Labor, 111 Ill. 2d 257, 489 N.E.2d

1325 (1985). Mere inaction by the State does not rise to estoppel against a governmental entity.

Id

. The People state that applying the doctrine of estoppel against public bodies is not favored.

Mot. to Strike at 7;

citing

Monat v. County of Cook, 322 Ill. App. 3d 499, 750 N.E.2d 260 (1st

Dist. 2001). The People assert that at most Texaco’s allegations show inaction by the State, but

under no circumstances do the facts rise to estoppel against the State. Mot. to Strike at 8.

Accordingly, the People ask the Board to strike Texaco’s sixth alleged affirmative defense.

 

The Board finds that Texaco has adequately pled estoppel as an affirmative defense.

Without making a determination on the merits of the parties’ assertions at this point in the

proceeding, the Board will allow Texaco the opportunity to meet the substantial burden of

establishing estoppel against the People at hearing or in future pleadings. Accordingly, the

Board does not strike this affirmative defense.

 

Seventh Affirmative Defense – Compliance with a Regulatory Program Exempts Texaco

from Violating Section 12(a) of the Act

 

Texaco argues in its seventh alleged affirmative defense that because it complied with

interim status and other groundwater regulatory requirements, it is shielded from liability under

Section 12(a) of the Act. Ans. at 21; Resp. at 7.

 

The People assert that nothing in the Act or Board regulations creates an exemption from

Section 12(a) for parties that comply with some other Agency regulatory program. Reply at 1-2.

The People argue that Texaco’s seventh alleged affirmative defense is vague and lacks support

and must therefore be struck. Mot. to Strike at 8; Reply at 2.

 

  

Section 12(f) of the Act provides a specific exemption from water pollution for any

person in compliance with the terms and conditions of an National Pollutant Discharge

Elimination System (NPDES) permit issued under the Act. 415 ILCS 5/12(f) (2002). Section

12(a) of the Act provides no exemption from liability for parties that comply with another

regulatory program. Furthermore, Texaco has not presented the Board with any new facts that

would defeat the People’s claim of water pollution even if all of the facts in the complaint were

true. The Board finds here that Texaco’s seventh alleged affirmative defense is not an

affirmative defense but rather a factor that may, if anything, mitigate any imposed penalty. The

Board grants the People’s motion to strike this affirmative defense.

 

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10

Eighth Affirmative Defense – Compliance

With a Regulatory Program, and a

Permitted GMZ, Exempts Texaco From the State’s Claims in Count I

 

Texaco argues that because the site complied with a interim status groundwater

requirements, and later a permitted GMZ, it is shielded from liability under Section 12(a) of the

Act and Part 620 of the Board rules as alleged by the People in count I of the complaint. Ans. at

21; Resp. at 7. Texaco cites to Board precedent for the principle that compliance with an interim

status requirements and a permit may shield it from liability under a Section of the Act. Resp. at

7;

citing

Illinois v. Stein Steel Mills, PCB 02-1 (Apr. 18, 2002).

 

The People argue the facts at issue are distinguishable from Stein Steel Mills because that

case involved compliance with operating programs specifically required by the Section of the

Board rules that the People alleged the respondent violated (35 Ill. Adm. Code 212.309(a)) in

that case. Stein Steel Mills, slip op. at 8. The People argue that in contrast Texaco is trying to

allege that compliance with a RCRA regulatory program shields it from liability under Section

12(a) and Part 620 of the Board rules concerning groundwater quality. Reply at 2. The People

conclude that Stein Steel Mills is not analogous to the present situation and that Texaco’s eighth

alleged affirmative defense is insufficient and should be struck.

 

The Board finds Stein Steel Mills is distinguishable from the present situation. In

refusing to strike the respondents’ alleged affirmative defense, the Board in Stein Steel Mills

held “the existence of a valid operating program is at the heart of the alleged violations of

Section 212.309(a) of the Board’s regulations and Section 9(b) of the Act.” Stein Steel Mills,

slip op. at 8. In contrast, whether Texaco complied with interim status groundwater regulatory

requirements or a permitted GMZ is not at the heart of the alleged violations of the Board’s Part

620 groundwater standards. Additionally, the present allegations involve a different section of

the Act. Compliance with a permitted GMZ would provide Texaco immunity from violating the

Part 620 standards. Therefore, the Board finds Texaco may be able to prevail on this defense,

and accordingly denies the People’s motion to strike the eighth alleged affirmative defense.

 

Ninth and Tenth Affirmative Defenses – Due Process

 

In Texaco’s ninth and tenth alleged affirmative defenses, Texaco argues the state’s

claims in both counts I and II (respectively) are barred by due process because enforcing the

alleged violations would constitute retroactive regulation of Texaco. Ans. at 22. Regarding the

alleged groundwater quality violations, Texaco argues that any alleged discharge and impacts on

the groundwater at the site predated the adoption of the Section 630

3

numerical standards. Resp.

at 8. Thus, Texaco argues, application of those standards in count I of the complaint constitutes

retroactive regulation.

 

3

Texaco cites to “35 Ill. Adm. Code 630 numerical standards” in the complaint, but the Board

assumes Texaco is referring to the standards set forth at 35 Ill. Adm. Code 620.

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11

Regarding the alleged open dumping violations, Texaco contends that it can

demonstrate that coke fines were placed on the site prior to 1980, prior to the Act’s prohibition

of open dumping. Resp. at 12. Therefore, Texaco argues, application of the open dumping

prohibition in count II of the complaint constitutes retroactive regulation, and is a viable

affirmative defense.

Id

.

 

The People contend the Board should strike Texaco’s ninth and tenth alleged affirmative

defenses because they are factually and legally insufficient. Mot. to Strike at 9-10. The People

argue that the Part 620 rules do not regulate releases, but groundwater conditions. Reply at 3.

Therefore, the only relevant consideration is the condition of the groundwater at the time the

regulations became effective and thereafter.

Id

. The People cite to Illinois caselaw and Board

precedent for the principle that liability may arise when one maintains a condition after a

prohibition of that condition becomes effective. Reply at 3; Freeman Coal Mining Corp. v. PCB,

21 Ill. App. 3d 851, 308 N.E.2d 829 (5th Dist. 1974); People v. Peabody Coal Co., PCB 99-134

slip op. at 11-12 (June 5, 1999).

 

The Board finds no allegations in the People’s complaint that amount to an attempt of

retroactive regulation. Both counts allege violations of the Act or Board regulations in effect at

the time the violations occurred. In count I, the People allege violations of groundwater

standards occurred in 1998 and continue to the present date. Ans. at 12. In count II, the People

allege Texaco caused or allowed open dumping at the site prior to July 28, 1999 until September

28, 1999. Ans. at 17. Section 620.405 of the Board rules, effective November 25, 1991, and

Sections 12(a) and 21(a) of the Act, effective July 1, 1970, were in effect at the time the

violations allegedly occurred. The Board finds no allegations in the complaint that amount to an

attempt at retroactive regulation as Texaco argues. Accordingly, the Board grants the People’s

motion to strike Texaco’s ninth and tenth affirmative defenses.

 

Eleventh Affirmative Defense – Violations of TACO Objectives and PQLs Cannot Form

the Basis of Violations of the Act

 

Texaco argues that violations of TACO remediation objectives or PQLs do not constitute

a violation of Section 12(a) of the Act. Ans. at 12. Texaco argues that because they are not

enforceable, exceedances of TACO remediation objectives and PQLs do not constitute violations

of Section 12(a) of the Act.

Id

. Texaco also alleges that TACO objectives (Part 742 objectives)

cannot be applied to a site subject to a federally delegated program.

Id

.

 

The People argue that Texaco’s eleventh alleged affirmative defense is vague and

misstates the law and should therefore be struck. Mot. to Strike at 11. The People assert that

Texaco mischaracterizes the complaint since the People do not cite to TACO remediation

objectives or PQLs as violations, but as facts that support the alleged violation of Section 12(a).

The People contend that violations of TACO objectives and PQL standards are relevant evidence

that water pollution has occurred. Reply at 4.

 

The People further contend that TACO objectives can be applicable to federally

delegated programs, for example RCRA. The People state that Section 742.105(b)(3) regarding

applicability provides: “This Part is to be used in conjunction with the procedures and

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12

requirements applicable to the following programs: . . . RCRA Part B Permits and

Closure Plans (35 Ill. Adm. Code 724 and 725).” 35 Ill. Adm. Code 742.105(b)(3). The People

state that even so, it is unclear how this allegation constitutes an affirmative defense to a Section

12(a) violation. The People move the Board to strike this affirmative defense.

 

The Board finds that count I of the complaint alleges only violations of Section 12(a) of

the Act and Section 620.405 of the Board rules. Exceedances of the TACO remediation

objectives and PQL standards are not part of the cause of action in count I. Therefore, Texaco’s

eleventh alleged affirmative defense raises no new facts that if true would defeat the People’s

claim of water pollution in count I of the complaint. Accordingly, the Board grants the People’s

motion to strike this alleged affirmative defense.

 

Twelfth Affirmative Defense – Section 49(c) is a Prima Facie Defense to the Violations

Alleged in Count I

 

The People argue that Section 49(c) of the Act is blank. Mot. to Strike at 12. The People

further argue that “allowing the Respondent the assumption that Respondent meant 415 ILCS

5/49(e), the prima facie defense still does not apply.” Id. Section 49(e) requires Texaco to have

complied with Board rules and regulations. The People contend Texaco did not comply with the

Act and Board rules and regulations, thereby negating Section 49(e) as a possible defense.

Id

.

The People argue accordingly that neither Section 49(c) nor Section 49(e) is a viable affirmative

defense.

 

Texaco did not respond to the People’s motion to strike this alleged affirmative defense.

 

In the twelfth alleged affirmative defense, Texaco cites to Section 49(c) of the Act while

using the prima facie defense language of Section 49(e) of the Act. Assuming from Texaco’s

argument that Texaco meant to cite Section 49(e) of the Act, the Board finds it is a valid

affirmative defense. Accordingly, the Board denies the People’s motion to strike the twelfth

alleged affirmative defense.

 

Thirteenth Affirmative Defense – Reservation of Rights

 

In its thirteenth alleged affirmative defense, Texaco reserved its right to assert additional

defenses throughout this proceeding. Ans. at 22.

 

The People move the Board to strike Texaco’s thirteenth affirmative defense as improper.

Mot. to Strike at 12. The People argue that Section 103.204(d) of the Board rules requires all

affirmative defenses to be presented before hearing unless the affirmative defense could not be

known before hearing. 35 Ill. Adm. Code 103.204. The People contend Texaco cannot change

this rule simply by asserting a reservation of rights. Mot. to Strike at 12.

 

The Board finds this is not a proper affirmative defense. A reservation of rights to assert

additional defenses does nothing to attack the People’s right to bring the claims it sets forth in

the complaint. The Board grants the People’s motion to strike this defense. Furthermore,

Texaco is limited by Board procedural rules, which require all affirmative defenses to be

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13

presented before hearing unless the affirmative

defense could not be known before hearing.

35 Ill. Adm. Code 103.204.

 

CONCLUSION

 

 

The Board grants the People’s motion to strike in part and denies the motion in part. The

Board grants the motion to strike nine of the thirteen alleged affirmative defenses raised by

Texaco, affirmative defenses 1, 2, 3, 5, 7, 9, 10, 11, and 13. The Board denies the People’s

motion to strike regarding four of the alleged affirmative defenses, affirmative defenses 4, 6, 8,

and 12.

 

 

IT IS SO ORDERED.

 

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on November 6, 2003, by a vote of 6-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board