RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLERKSOFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
MAR 05 2004
by LISA MADIGAN, Attorney
)
STATE OF ILLINOIS
General
of the State of Illinois
)
Pollution
Control Board
Complainant,
v.
)
No. PCB 04-9
AARGUS PLASTICS,
INC.,
an
Illinois corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEAS~ETAKE NOTICE that on March
5,
2004,
the People of the
State of Illinois filed with the Illinois Pollution Control Board
Complainant’s Motion to Strike or Dismiss ~espondent’s
Defenses,
true and correct copies of which are 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 FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Ms. Maureen Wozniak,
Esq.
Illinois Environmental Protection Agency
1021. No~thGrand Avenue East
P.O. Box 19276
Springfield,
IL 62794-9276
Mr. Leo P.
Dombrowski
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Chicago,
IL 60606
Mr. Thomas Golz
Mr. John
J.
Cullerton
Fagel Haber
55
E. Monroe Street,
40th
Floor
Chicago,
IL 60603
RECE~VEE~
BEFORE .THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
MAR
052004
by LISA MADIGAN, Attorney
General of the State of Illinois
PoHuon~~~d
Complainant,
v.
)
No. PCB 04-9
AARGTJS PLASTICS,
INC.,
an Illinois corporation,
Respondent.
COMPLAINANT’S
MOTION TO STRIKE OR DISMISS
RESPONDENT’ S DEFENSES
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
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, moves for
an order striking or dismissing the defenses of Respondent,
AA.RGUS PLASTICS,
INC.
In support of its motion,
Complainant
states as follows:
INTRODUCTION
On July 17,
2003 Complainant,
the People of the State of
Illinois,
filed an eight-count complaint against Respondent
AARGUS PLASTICS,
INC.
alleging violations of the Illinois
Environmental Protection Act
(“Act”),
Pollution Control Board
(“Board”)
regulations,
Illinois Environmental Protection Agency
(“Illinois EPA”)
regulations, and Respondent’s operating permits
concerning Respondent’s polyethylene bag manufacturing plant
1
located at 1415 Redeker Road, Des Plaines,
Cook County,
Illinois
(“facility”)
S~ec±fica1ly,Complainant alleged that Respondent has been
applying inks to polyethylene bags at its facility that contain
over 40
VOM by volume
(Count I); failing to use compliant ink
and failing to submit progress reports in a timely manner
(Count
II); violating volatile organic material emission standards
(Count
III);
submitting inaccurate and incomplete annual
emissions reports
(Count IV); violating Emission Reduction Market
System regulations
(Count V); failing to submit annual
compliance
certifications
(Count VI)
;
failing to notify Illinois EPA of
noncompliance with its Clean Air Act Permit Program
(“CAAPP”)
permit
(Count VII);
and failing to comply with terms and
conditions of its CAAPP permit
(Count VIII).
On February
3,
2004,
Respondent filed its answer and
thirteen affirmative defenses to the complaint.
Complainant
moves herein to strike or dismiss
all of the defenses for the
reasons outlined below.
LEGAL
STANDARD
An affirmative defense is a
matter to be asserted by
(respondent)
which,
assuming the complaint to be true,
constitutes a defense to it.
An affirmative
defense is a response to
a
(complainant’s)
legal
right to bring an action,
as opposed to
attacking the truth of the claim.
Black’s
Law Dictionary at
60 (6t~~
Ed.
1990)
.
2
2~n
affirmative defense gives color to the opposing partyT s claim
and then asserts
a new matter by which the apparent right
is
defeated.
Ferris Elevator Company,
Inc.
v. Neffco,
Inc.,
285
I1l.App.3d 350,
354,
674 N.E.2d 449,
452
(3rd fist.
1996)
.
In
other words,
an affirmative defense confesses or admits the cause
of action alleged by Complainant,
then seeks to avoid it by
asserting a new matter not contained in the complaint and answer.
Worner Agency,
Inc.
v.
Doyle,
121 I,1l.App.3d 219,
222-223, 459
N.E.2d 633,
635-636
(4th Dist.
1984)
None of Complainant’s defenses attack the truth of the
allegations in the complaint.
Thus, Respondent’s defenses are
all affirmative defenses,
even though some are not properly pled
and none are legally valid.
The facts in an affirmative defense must be pled with the
same specificity as required by Complainant’s pleading to
establish a cause of action.
International Insurance Co.
v.
Sargent & Lundy,
242
Ill. App.
3d 614,
630,
609 N.E.2d 842,
853
(1st Dist.
1993)
ARGUMENT
Affirmative Defense
1
Affirmative defense
1 states:
Complainant’s complaint fails to state a
claim upon which relief can be granted.
This affirmative defense has no merit.
In each count of the
complaint,
Complainant alleges violations of the Act, the
3
regulations promulgated thereunder, or Respondent’s CA~PP
permits.
If the Board subsequently finds that Respondent has
committed any of the violations alleged in the Complaint,
the
Board can award relief in the form of civil penalties to
Complainant pursuant to Section 42(h)
of the Act,
415 ILCS
5/42(h)
(2004).
Respondent’s first affirmative defense is
extremely premature and assumes that the Board would decide in
Respondent’s favor with respect to every allegation in the
complaint.
In addition,
the first affirmative defense
is not pled with
the same degree of specificity as the complaint.
Respondent
fails to state
why
Complainant
fails to state a claim upon which
relief can be granted.
For
these reasons, Respondent’s
first
affirmative defense should be stricken.
Affirmative Defense
2
Affirmative defense
2 states:
The IEPA did not issue and serve a violation
notice upon Aargus within 180 days after it
became aware of the alleged violations,
as
required by Section 31(a) (1)
(of the Act)
Accordingly,
the Board lacks jurisdiction
over this matter.
This
is simply not true.
Illinois EPA issued two violation
notices
(“VMs”)
on Aargus within 180 days after becoming aware of
the alleged violations.
The Illinois EPA issued the first VN on
September 13, 2001 regarding failure to submit an annual
compliance certification.
Illinois EPA issued the second VN on
4
January 31,
2002 regarding other violations after a review of its
files.
The Board has struck identical and/or similar affirmative
defenses in the past in holding that the 180 day requirement is
directory rather than mandatory in nature.
Facts regarding the
date that Illinois EPA became aware of the alleged violation do
not affect the Board’s jurisdiction over an enforcement matter.
See People
v. Peabody Coal
Co.,
PCB 99-134
(June
5,
2003),
citing
People v.
Crane,
PCB 01-176
(May 17,
2001)
Any attempts by Respondent to argue lack of jurisdiction
based on when Illinois EPA became aware of the violations alleged
in the Complaint must fail.
The Board has proper jurisdiction
over this matter.
Therefore, Respondent’s second affirmative
defense should be stricken.
Affirmative Defense
3
Affirmative defense
3
states:
Complainant’s claims are barred,
in whole or
in part, by the applicable statute of
limitations.
For starters,
this affirmative defense must fail due to lack
of specificity; Respondent does not even bother to indicate which
statute of limitations
is applicable or provide any legal
citation to it.
.
Simply put,
there
is no statute of limitations for
violations of the Act,
the regulations promulgated thereunder,
or
5
violations
of permits issued pursuant to the Act.
See Pielet
Brothers Trading,
Inc.
v.
Pollution Control Board,
110 Ill. App.
3d 752,
757-758,
442 N.E.2d 1374,
1378-1379
(5tl~
Dist.
1982);
People
v.
State Oil et
al,
PCB 97-103
(May 18,
2000)
.
Therefore,
Respondent’s third affirmative defense should. be stricken.
Affirmative Defenses
4 and 5
Affirmative defenses
4 and
5
state:
Complainant’s claims are barred,
in whole or
in part,
by the doctrine of laches because
the Agency had known of the alleged
violations for years, but waited until
January 31,
2002 to issue and serve a
Violation Notice upon Aargus.
Complainant’s claims have been waived,
in
whole or in part, because Complainant knew or
should have known of its rights to take
enforcement action against Aargus,
but
relinquished those rights by failing to take
action.
To begin with,
the fourth affirmative defense
is only
partially accurate since Illinois EPA issued its first VN on
Aargus on September 13,
2001.
Affirmative defenses
4 and 5 concern laches.
Laches assumes
that due to Complainant’s delay in asserting a right, Respondent
is prejudiced.
City of Rochelle v.
Suski,
206 Ill. App.
3d 497,
501,
504 N.E.2d 933,
936
(2nd
Dist
1990)
It
is well settled in the law that laches may not be invoked
against a governmental body which is attempting to perform its
governmental function, or in actions involving public rights.
6
Laches should only be invoked in “extraordinary circumstances”.
Qppj~County v.
Chicago Magnet Wire Corp.,
152 Ill. App.3d 726,
727-28,
504 N.E.2d 904,
905
(1st fist.
1987)
.
In Pielet,
110
Ill. App. 3d at 758,
442 N.E. 2d at
1379,
the Court found that
the public has a right
to a healthy and safe environment.
This
is also consistent with language found in Article XI of the
Illinois Constitution and Section 2(b)
of the Act, 415 ILCS
5/2 (b) (2002)
.
There are no extraordinary circumstances in this matter,
and
Complainant
is performing its governmental function of protecting
the environment.
There was no unreasonable delay on the part of
Complainant with respect to pursuing the alleged violations
against Respondent.
Respondent has not demonstrated any
prejudice due to any supposed delay on Complainant’s part in
serving Respondent with a VN.
See People v. OC Finishers,
Inc.,
PCB 01-7
(June
19,
2003)
.
Respondent cannot sustain an
affirmative defense of laches, and thus the fourth and fifth
affirmative defenses must be stricken.
Affirmative Defenses
6 and 11
Affirmative defenses
6 and 11 state:
Complainant’s claims are barred,
in whole or
in part,
by the doctrine of estoppel because
the Agency regularly inspected the Aargus
facility, knew or should have known of the
alleged violations,
yet did not inform Aargus
that
it was allegedly violating applicable
requirements.
Consequently, the Agency
authorized Aargus’s practices and operations.
7
The IEPA failed to fairly advise Aargus of
the applicable requirements and did not
provide fair notice of those requirements.
Although affirmative defense
6
is clearly estoppel,
affirmative defense 11
is also estoppel, even though Respondent
does not label
it as such.
The estoppel defense
is similar to the laches defense:
Respondent is claiming that Complainant’s action or inaction,
upon which Respondent relied,
has prejudiced Respondent.
Estoppe1
applies to preclude a party from asserting a
right which might otherwise have existed as
against another person when the other person
relies in good faith on the party’s conduct
and is led thereby to change
its position for
the worst.
Hartford Accident and Indemnity
Co.,
v.
D.F.
East,
Inc.,
56
Ill. App. 3d 960,
962,
372 N.E.2d 829,
832
(19t
Dist
1977)
In seeking to successfully prove the affirmative defense of
estoppel against the government,
Respondent must prove three
factors.
First,
Respondent must prove that
it relied on a
government agency,
the reliance was reasonable, and that such
reliance led that party to suffer some prejudice.
Second,
Respondent must show that the government agency made a
misrepresentation knowing that the misrepresentation was untrue.
And third,
Respondent must show that the government agency
engaged in an affirmative act.
People v. Skokie Valley Asphalt
Co.,
Inc.,
PCB 96-98
(June
5,
2003), motion for reconsideration
denied July 24,
2003.
8
Much like laches,
Where governmental activities are concerned,
the
(estoppel)
doctrine cannot be invoked
except in extraordinary circumstances.
.
.The
paramount consideration is the right
of the
people and estoppel will not be applied to
defeat a policy adopted to protect the
public.
County of Cook v.
Patka,
85
Ill.
App.3d
5,
12, 405 N.E.2d 1376,
1380
(1980)
Complainant has clearly informed Respondent of its
violations of the Act, regulations, and its permit via the
Section 31 process and the filing of the complaint.
Respondent
has not shown that Complainant made any knowing
misrepresentations.
In addition, Respondent does not allege any
affirmative act on the part
of Complainant that prejudiced
Respondent.
There are no extraordinary circumstances in the
instant matter.
The government here
is trying to protect the
public’s right to a healthy and safe environment by enforcing
environmental laws and regulations against alleged violators such
as Respondent.
Respondent’s affirmative defenses of estoppel,
both labeled in affirmative defense
6 and unlabeled in
affirmative defense
11, must therefore be stricken.
Affirmative Defenses
7
and
8
Affirmative defenses
7 and
8
state:
The alleged violations did not result in any
economic benefit to Aargus.
The alleged violations did not result in any
harm or threat of harm to the environment.
These affirmative defenses speak to the imposition of
9
penalties rather than the underlying allegations
in the
complaint.
The Board has stricken such affirmative defenses in
the past for this reason,
and thus the Board should strike
affirmative defenses
7 and 8 herein.
See People v. Geon Co.,
Inc.,
PCB 97-62
(Oct.
2,
1997),
citing People v
.
Midwest Grain
Products of Illinois,
Inc., PCB 97-179
(Aug.
21,
1997)
and People
ij.
Dou~1asFurniture Co.
of California,
Inc.,
PCB 97-133
(May 1,
1997)
Affirmative Defenses
9 and 10
Affirmative defenses
9 and 10
state:
The alleged violations did not impair IEPA’s
administration of the air permit program.
Water-based inks do not represent RACT for
printers like Aargus.
Again,
these affirmative defenses do not address the
underlying allegations in the complaint.
As in Geon,
the Board
should strike affirmative defenses
9 and 10 herein.
Affirmative Defenses 12 and 13
Affirmative defenses
12 and 13
state:
The IEPA did not include in its Violation
Notice any allegation that Aargus violated
any requirement of the 1994 Permit.
This
portion of Count III
is therefore barred by
the Act.
The IEPA did not include in its Violation
Notice any allegation regarding a failure on
the part of Aargus to hold the appropriate
number ofATUs
at the end of the
reconciliation period in 2001.
This portion
of Count V is therefore barred by the Act.
10
Although these allegations
in the Complaint were not
included in the VMs, they are still valid allegations.
There
is no prohibition anywhere in the Act barring the
Attorney General from alleging violations against Respondent on
her own.
In the first paragraph of every count,
Complainant
states that the allegations of violations are brought “by the
Attorney General
on her own motion”
(emphasis added)
and upon the
request of the Illinois EPA.
Thus Illinois EPA may refer alleged
violations of the Act, the regulations, and Respondent’s permit
to the Attorney General pursuant to Section 31 of the Act, 415
ILCS 5/31
(2002), and the Attorney General may allege violations
of the Act on her own.
See Peabody Coal
(June
5,
2003)
citing
People v.
Eager-Picher-Boge,
PCB 99-152
(July 22,
1999)
.
The
allegations that Respondent refers to in affirmative defenses
12
and 13 were brought by the Attorney General on her own motion.
For these reasons, affirmative defenses
12 and 13 must be
stricken.
CONCLUSION
All of Respondent’s affirmative defenses have serious flaws
which render them invalid.
All of Respondent’s affirmative
defenses should therefore be stricken or dismissed.
11
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA
MADIGAN,
Attorney General of the
State of Illinois,
By:
J~7
~
~
JOEL J.
STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.
-
20th Fl.
Chicago,
IL 60601
(312)
814-6986
H \cominori\Environme~ea1\JOEL\CaseDocuments\Aargus Plastics\mot-strk-aff-def .wpd
12
CERTIFICATE OF SERVICE
I,
JOEL J.
STERNSTEIN,
an Assistant
Attorney General,
certify that on the
5th
day of March 2004,
I caused to be served
by First Class
Mail the foregoing Complaint 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