BEFORE THE ILLINOIS POLLUTION CONTROL BOARD~~~~ED
PEOPLE OF THE STATE OF ILLINOIS,
)
FEB
-
6
by LISA MADIGAN, Attorney
General
of the State of Illinois
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
No. PCB 02-186
v.
)
Enforcement
-
Air
VAN
MELLE U.S.A.,
INC.,
an
Illinois corporation,
Respondents.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on February
6,
2004 Complainant
filed with the Pollution Control Board the following Motion for
Leave to File a Reply to Respondent’s Response to Complainant’s
Motion to Strike or Dismiss Respondent’s Affirmative Defenses and
Complainant’s Reply to Respondent’s Response to Complainant’s
Motion to Strike or Dismiss Respondent’s Affirmative Defenses,
true and correct copies of which is attached and hereby served
upon you.
Respectfully submitted,
LISA MADIGAN
Attorney General
State of Illinois
BY:
__________
JOEL
J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Floor
Chicago, Illinois
60601
(312)
814-6986
THIS DOCUMENT SUBMITTED ON RECYCLED PAPER
SERVICE LIST
John Faletto,
Esq.
~oward
& Howard
211 Fulton,
Suite 600
Peoria,
IL 61602-1350
Maureen Wozniak,
ESq.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL
62794-9276
BEFORE THE ILLINOIS POLLUTION CONTROL
BO~gCE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
FEB
-
62004
by LISA MADIGAN, Attorney
General of the State of Illinois
)
STATEOFILLINOIS
Pollution Control Board
Complainant,
No. PCB 02-186
v.
)
Enforcement
-
Air
VAN
MELLE U.S.A.,
INC.,
an Illinois corporation,
Respondent.
COMPLAINANT’S
MOTION FOR LEAVE TO FILE A REPLY
TO RESPONDENT’S RESPONSE
TO
COMPLAINANT’S MOTION TO STRIKE OR DISMISS
RESPONDENT’S
AFFIRMATIVE DEFENSES
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General of the State of Illinois,
pursuant to
SectiOn 101.500(e)
of the Board’s Procedural Regulations, hereby
requests that the Board allow it leave to file a reply to
Respondent’s Response to Complainant’s Motion to Strike or
Dismiss Respondent’s Affirmative Defenses.
Complainant will
suffer material prejudice if not allowed to file its reply.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the
State of 111±ois
_________
By:
_______
JOEL
J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.
-
20th Fl.
Chicago,
IL 60601
(312)
814-6986
ccs
FEB
-
2O~FORE THE ILLINOIS POLLUTION CONTROL
BOARD
OF ILLINOIS,
b~o\~4’~1~’IADIGAN,
Attorney
General of the State of Illinois
Complainant,
No. PCB 02-186
v.
)
Enforcement
-
Air
VAN
MELLE U.S.A.,
INC.,
an Illinois corporation,
Respondent.
COMPLAINANT’S
REPLY TO RESPONDENT’S RESPONSE TO
COMPLAINANT’S MOTION TO STRIKE OR DISMISS
RESPONDENT’S
AFFIRMATIVE DEFENSES
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN,
Attorney General of the State of Illinois, pursuant to
Section 101.506 of the Board’s Procedural Regulations and
Section 2-615 of the Illinois Code of Civil Procedure hereby
replies
to Respondent
VAN
MELLE U.S.A.,
INC.
(“Van Melle”)
Response to Complainant’s Motion to Strike or Dismiss
Respondent’s Affirmative Defenses.
In support of its reply,
Complainant states as follows:
INTRODUCTION
1.
On December 24,
2003 Complainant filed its Motion to
Strike or Dismiss Respondent’s Affirmative Defenses.
On January
21,
2004,
Respondent filed its Response to Complainant’s Motion
to Strike or Dismiss Respondent’s Affirmative Defenses.
Complainant’s reply is as follows:
1
LEGAL
STANDARD
FOR MOTION TO STRIKE OR DISMISS
2.
Complaint agrees with Respondent’s assertiOn that
in
a
Section 2-615 motion,
a court must accept all well-pleaded facts
as true.
American National Bank
& Trust Co.
v.
City of Chicago,
192 Ill.
2d 274,
279,
735 N.E.2d 551,
554
(2000)
.
Complainant
also agrees with Respondent’s assertion that “(w)here the well-
pleaded facts of an affirmative defense raise the possibility
that the party asserting them will prevail,
the defense should
not be stricken”
International Insurance Co.
v.
Sargent and
Lundy,
242 Ill. App.
3d 614,
631,
609 N.E.2d 842,
854
(lst dist
1993)
.
However, Respondent’s affirmative defenses herein are
such that none of the facts that Respondent pleaded would
entitle Respondent to any relief.
Thus,
the affirmative
defenses should be stricken.
COMPLETE AFFIRMATIVE DEFENSE
AND FIRST PARTIAL AFFIRMATIVE DEFENSE
3.
Respondent claims that the allegations in the
complaint are barred by laches.
4.
Respondent
is correct that,
should complainant prevail
at trial, Complainant is entitled to penalties that are based in
part on the number of days that Respondent has been out of
compliance with the Illinois Environmental Protection Act
(“Act”) and the Pollution Control Board’s
(“Board”)
regulations.
See 415 ILCS 5/42(a)
(2004).
5.
Respondent then contends that
its. claim of laches must
2
succeed since Complainant cannot pinpoint the exact date or
dates that Respondent’s alleged violations of the Act and the
Board’s regulations began.
This argument is wholly without
merit.
An exact pinpointing of Respondent’s first dates of
noncompliance will be better established during discovery and/or
at hearing and should not serve as a reason to justify
Respondent’s affirmative defense of laches.
Respondent’s
initial dates of noncompliance have absolutely nothing to do
with Respondent’s claim of laches.
6.
Complainant did not delay filing this matter; any
“delay” occurred due to Illinois EPA following the dictates of
Section 31 of the Act
(415 ILCS 5/31
(2004)) prior to referring
the case to the Attorney General’s Office for prosecution.
The
Board has held that delays subject to the Section 31 pre-
referral process may be explored by the parties to an
enforcement case during discovery, but has struck affirmative
defenses alleging Section 31 delays.
See People v. John Crane
Inc.,
PCB 01-176
(May 17,
2001).
7.
Respondent contends that Complainant’s “delay”
in
filing this matter before the Board could result in an award of
a larger penalty.
Respondent cites Section 42 of the Act which
sets a calculation for penalties based on the number of days
that a respondent is not compliant with the Act and the Board’s
regulations
(See 415 ILCS 5/42
(2004))
.
The Board has held that
3
penalties are not an appropriate topic for affirmative defenses:
The appropriate penalty to be imposed for a
violation of the Act is a separate inquiry
from whether a violation of the Act has
occurred,
and mitigation issues are only
considered once
a violation of the Act has
been found.
An affirmative defense is a
response to a claim which attacks the
complainant’s right to bring an action.
Farmers’
State Bank v.
Phillips Petroleum
Co.
(Jan.
23,
1997),
PCB 97-100,
slip op.
at
2 n.l.
Accordingly, as the Board recently
ruled in People v. Douglas Furniture of
California,
Inc.
(May
1,
1997),
PCE 97-133,
slip
op.: at
6,
a defense which speaks to
imposition of a penalty rather than the
underlying cause of action is not an
“affirmative defense” to that cause of
action.
People v. Midwest Grain Products of
Illinois Inc.
PCB 97-179
(August 21,
1997)
Since Respondent has tied the amount of penalty in this matter
to laches, the affirmative defense of laches must fail.
8.
Respondent also attempts to distinguish this case from
Cook County v. Chicago Magnet Wire Corp.
-
but to no avail.
In
that case Cook County sued Chicago Magnet Wire Corp.
for
violations of the Cook County Environmental Control Ordinance.
In finding that the application of laches to governmental
entities is disfavored, the Appellate Court found that
The record does not reveal any prejudice to
defendant brought about by the delay.
Defendant either sought or agreed to the
delays.
If anything,
the delay seems to
have benefitted defendant because it
continued to operate its business in the
usual manner.
Cook County v.
Chicago Magnet
Wire Corp.,
152
Ill. App.3d 726,
728,
504
N.E.2d 904,
906
(1st Dist.
1987)
4
There are no extraordinary circumstances in this matter nor is
Respondent prejudiced due to any “delay”
on Complainant’s part.
Although laches was argued in the Chicago Magnet Wire case,
Van
Melle’s affirmative defense of laches is not legally sufficient
herein and therefore should be stricken or dismissed.
SECOND PARTIAL AFFIRMATIVE DEFENSE
9.
Respondent alleges that a third party is responsible
for the allegations in the complaint.
10.
As Complainant stated in its Motion to Strike,
the
second affirmative defense is extremely non-specific and fails
to identify the responsible third party.
In its Response,
Respondent again failed to identify a third party.
Thus,
the
second affirmative defense remains non-specific.
11.
If Respondent believes that a third party
is
responsible for the alleged violations, then Respondent should
file a third party claim, not raise the issue as an affirmative
defense.
In addition,
if, during discovery,
it becomes apparent
that a third party is responsible for the alleged violations in
the complaint,
Complainant may add that third party as a
Respondent.
12.
Respondent claims that the Complaint contains
allegations related to the construction of Respondent’s candy
manufacturing facility in Buffalo Grove,
Illinois
(“facility”)
This
is simply not true.
All of the counts in the complaint
5
pertain to the operation of the facility.
13.
Respondent then states that the second part of its
second affirmative defense
is for contributory negligence.
Obviously, Respondent may plead any affirmative defense that is
chooses
to.
However,
the Board may strike the affirmative
defense if
it
is not valid.
THIRD PARTIAL AFFIRMATIVE DEFENSE
14.
In their third affirmative defense, Respondent claims
that Illinois EPA failed to issue a “Wells Letter” and thus
wrongfully denied the Respondent’s permit appeals for the
facility.
See Wells Manufacturing vs.
Illinois EPA,
195
Ill.App.3d 593,
552 N.E.2d 1074
(1st Dist.
1990)
.
Those permit
appeals are not at issue
in this matter but are instead the
subject of permit appeal currently pending before the Board.
See Perfetti Van Melle USA,
Inc.
v.
Illinois EPA,
PCB 02-215.
15.
In the Motion to Strike,
Complainant described a
limitation of the “Wells Letter” doctrine from another Board
case West Suburban Recycling and Energy Center v.
Illinois EPA,
PCB 95-119 and 95-125
(October 17,
1996)
(“WSREC”)
16.
The permit applicants in both Wells and WSREC were
applying for renewal permits.
Van Melle is applying for an
initial Clean Air Act Permit Program
(CAAPP)
permit.
17.
Van Melle substantially increased the emissions from
the facility compared to the past operator of the facility and
6
in turn was required to apply for its first
CAAPP
permit.
Respondent did not previously have a CAAPP permit and thus had
no existing property interest in the CAAPP permit.
Pursuant to
the holding in WSREC,
Illinois EPA is not legally obligated to
send a
“Wells Letter” to Respondent prior to denying its CAAPP
permit application.
18.
Respondent mistakenly contends that in the Motion to
Strike,
Complainant stated that the doctrine from the Wells
decision is limited solely to solid waste permitting decisions.
Complainant did not make this argument.
Complainant was merely
reciting the holding from WSREC,
a decision involving a solid
waste management permit.
The holdings in both Wells and WSREC
are at issue when various types of permit applications are
pending with Illinois EPA,
including CAAPP permits.
In
addition,
the “Wells Letter” requirement is limited by the
holding in WSREC no matter what type of permit
is at issue.
19.
Furthermore,
in all of the permit application denial
letters that Illinois EPA sent to Respondent Van Melle,
Illinois
EPA clearly explained which Sections of the Act might be
violated if the requested
CAAPP
permit were issued.
In
addition,
Illinois EPA also identified the information that Van
Melle failed to provide in its permit applications.
20.
Finally, Complainant stresses to the Board that the
third affirmative defense
is applicable to the pending permit
7
appeal before the Board in docket PCB 02-215.
The defense has
no bearing on the alleged violations in this docket.
The third
affirmative defense is both irrelevant and not valid.
It should
be stricken.
CONCLUSION
21.
For the reasons set forth above, all of Respondent’s
affirmative defenses should be stricken or dismissed.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the
State of Illinois,
By:
________
JOEL J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.
-
20th Fl.
Chicago,
IL 60601
(312)
814-6986
8
CERTIFICATE OF SERVICE
I, JOEL J.
STERNSTEIN, an Assistant Attorney General,
certify that on the 6th day of February 2004,
I caused to be
served by First Class Mail the foregoing
Motion for Leave to File
a Reply to Respondent’s Response to Complainant’s Motion to
Strike or Dismiss Respondent’s Affirmative Defenses and
Complainant’s Reply
to Respondent’s Response to Complainant’s
Motion to Strike or Dismiss Respondent’s Affirmative Defenses
to
the parties named on the attached service list,
by depositing
same in postage prepaid envelopes with the United States ~Postal
Service located at 100 West Randolph Street,
Chicago,
Illinois
60601.
JOEL J. STERNSTEIN