STATE OF ILLINOISPollution Control Board

vs. ) (Enforcement-Air))
Respondent. )

To:

NOTICE OF FILING

STATE OF ILLINOIS

Pollution Control Board

Ms. Paula Becker Wheeler

Assistant Attorney General

Office ofthe Attorney General

188 West Randolph Street, 20th Floor

Chicago, Illinois

60601

Clerk, Illinois Pollution Control Board

100

Randolph Street

State ofIllinois Center

Suite 11-500

Chicago, Illinois 60601

Mr. Bradley Halloran

Hearing Officer

Illinois Pollution Control Board

James R.

Thompson Center, Suite 11-500

100 W. Randolph Street

Chicago, Illinois

60601

PLEASE TAKE NOTICE that I have todayfiled with the Office ofthe

Clerk ofthe

Pollution ControlBoard the original and nine copies ofofQC Finishers, Inc., RESPONSE

TO MOTION TO DISMISS

SUPPLEMENTAL AFFIRMATIVE DEFENSES a copy of

which is herebyserved upon you.

Respectfully submitted,

Dated March

15,

2004

HeidiE. Hanson

E. Hanson, Esq. P.C.

4721 Franklin Aye, Suite 1500

Western Springs, IL 60558-1720

(708) 784-0624

HeidiE. Hanson

vs.

BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE

OF ILLINOIS,

Complainants,

FINISHERS, NC., an Illinois Corporation,)

Respondent.

)

RECEIVED

CLERK’S OFFICE

)

MAR1?2004

PCB # 01-07

)

(Enforcement-Air)

)

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF

THE

STATE OF ILLINOIS,

)

MAR

172004

)

STATE OF ILLINOIS

Complainants,

)

Pollution Control

Board

)

PCB#0l-07

vs.

)

(Enforcement-Air)

)

FIMSHERS, iNC., an Illinois

Corporation,)

)

Respondent.

)

RESPONSE

MOTION TO DISMISS

SUPPLEMENTAL AJ~HRMATIVE

DEFENSES

NOW COMES

QC Finishers, Inc. by

and

through its attorney, H. E.

HANSON

ESQ. P.C. pursuant to 35111 Adm. Code 101.500(d) and

in response to Complainant’s

Motion to

Dismiss

Supplemental Affirmative Defenses which

was

received onMarch 1,

2004, states as follows:

INTRODUCTION

As an initial matter Complainant’s Motion (page 1) appearsto take issue with the

fhct

that Respondent did not file a MI, restated, Supplemental Answer but instead revised

and supplemented

only those affirmative defenses that remained

at issue at this point ofthe

proceedings.

As explained

paragraph 4

ofthe Supplemental

Affirmative Defenses, no

otherpart ofthe Answer was

at issue

and

a repetitive refiling ofthe

entire Answer would

have been a

wasteful exercise and was

neither

necessary norrequired.

STANDARD

Standard for Pleading Affirmative Defenses

The Board’s procedural rules require that “any fhets constituting an affirmative

defense must be plainly set forth before hearing in the answer or in a supplemental

answer....”

35 Ill.

Adm. Code 103.204(d), eff.

January

1, 2001.

This standard

similar,

but not identical to,

a provision

in the Code

Civil

Procedure.

735

ILCS

5/2-613(d).

The Board’s standard for a valid affirmative defense is that

must allege “new

facts or arguments that, iftrue, 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).

Complainant also states in its motion (page 3) that an affirmative defense must be

“pledwith the same degree ofspecificity asrequired by a plaintiffto establish a cause of

action”.

Complainant fails to cite to

any Board rule or case that has adoptedthis criteria.

Instead Complainant cites to the Code ofCivil Procedure, and case which construes that

Code.

The Board has stated that the Code ofCivil Procedure does “not expressly apply

to proceedings before the Board”.

35 Iii Adm. Code 101.100(2001).

“While the Board

may look to the Code ofCivil Procedure for guidance whenthe Board’s procedural rules

do not address a particular issue, the Board’s current referring

to rules in effect afier

January

1, 2001

and formerprocedural rules address how to plead facts constituting

affirmative defenses”.

People v. John Crane, PCI3 01-76 slip op page 2, May

17,2001.

“Pleading rules are different in cases before the Board than in cases before the

circuit courts.”

People v. State Oil et.al.

PCB 97-103, 2000 III ENV LEXIS 326 *8 (May

18, 2000).

In People v. Douglas Furniture, PCB 97-133,

1997

III. ENV LEXIS 221

*13

(May 1,

1997) the Board found that it was not necessary for the Respondent to allege

each ofthe facts necessaryto prevail on the defense.

See also

People v.

Wood River Refining Company, PCB 99-120, 2002 ILL ENV LEXIS 437~•*

17,

18, discussion ofCount III Second Affirmative Defense, (August 8, 2002).

Pôople v.

Midwest Grain Products ofIllinois, (97-179) 1997 Ill. Env. Lexis 493

*10 (August 21,

1997).

The Affirmative Defense is valid and

appropriate for the period from 2000 to 2004

because it addressesnew facts outside the Complaint, specifically that Respondent is now

exempt from 2.18.204 because it is now regulated by 218.207.

The Attorney General’s

motion to dismiss hasmisread the AThrmative Defense and states no valid cause for

dismissing that defense, therefore the motion should be denied.

First Supplemental Affirmative

Defense to Count IV

Count

alleges that

C Finishers needed, and failed

to have, an

operating

programfor

its

parking

lot and

that this

failure

constituted a violation

III

Adm..

Code

212309.

Section 212.309 ofthe Board’s air rules statethat “the emission units described

in 212.304 through 212.308 and

Section 212.3 16 ....shall be operated under the provisions

ofan operating program”.

The issue here is whether Complainant has connected the requirements for an

operating plan (212.309) with a provision that would make the requirements applicable to

C Finishers parking lot.

Count IV ofthe Complaint also states that “parking lots are regulated emissions

sources pursuant to 35111. Adm.

Code 212.3 16.”

Paragraph 9.

This is correct but only as

to parking lots located in certain geographical areas.

Section 212.316, which is headed

“Emissions Limitationfor Emissions Units in Certain Areas”

states “this Section shall

apply to those operations specified in Section 212.302 and that

are located in areas that

are defined in section 212.324(a)(l) ofthis Part.”

(emphasis added).

Thus by referencing

the entire section 212.316, instead ofspecific subsections the Board clearly indicated its

intent to include the entire section with all ofits applicable provisions.

Ifit had intended

to refer to specific units regardless ofwhere they were located, it would have referred to

the specific subsections

212.316 that described those units.

Respondent stated as it affirmative defense that it was not locatedin an area

defined in 212.324(a)(l).

Thus Respondent raised a new fact and its affirmative defense

was responsive to the allegations made in the complaint.

Through its Motion to Dismiss Supplemental Affirmative Defenses, Complainant

made another attempt to find a provision that would make the operating planapplicable to

C Finishers parking lot.

This time Complainant

is arguing that Section 2 12.302 makes

the operating plan applicable to

C Finishers parking lot.

This is objectionable fortwo reasons.

First, it is not responsive to the affirmative

defense and seeks to rewrite and change the Complaint.

A motion to dismiss affirmative

defenses is not the appropriate time or place to plead newtheories ofliability.

Second, the

statement in the motion that “Section 212.309 refers to emission units described in

Section

212.302 which includesparking lots”

is simply incorrect.

Section 212.309 refers to “units

described in 212.304 through 2 12.308 and Section 212.3 16”.

It does not referto

212.302.

The motion to

dismiss

has no basis

and must fail.

Complainant’s motion to dismiss

this defense

should be

denied.

~ccond Supplemental Affirmative Defense to Count

JIV

Count IV,

paragraph

9, ofthe Complaint

alleges that

“as parking lots are regulated

emission

sources pursuant

to 35

Ill.

Adm.

Code 212.3 16,

Respondent was required to

submit to the state a Fugitive

Dust

Program”

pursuant

to 2 12.309.

Respondent’s Second

Supplemental Affirmative Defense to Count IV states

that

212.309 only applies to

“emission units” and then raises a new fact

that

will defeat the allegation

that its parking

lot is paved

and

therefore not capable of

emitting.

Complainant’s Motion to Dismiss

this

affirmative defense

argues that

“because of

the

nature

ofthe business onthe premises, particulate matter could still be

emitted

bythe

activity oftrucks driving onor offthe

parking

area or other activities

occurring on the

lot.”

Motion page

Complainant has

alleged

that there

is a factual issue, interestingly arguing that the

fact that

a mobile source drives over it might

make

C Finishers

parking

lot .into an

emission unit.

But the fact that a factual issue has

been raised does not provide a reason

for the Board to

dismiss the affirmative defense.

Complainant’s argument fails

admit

the well-pleaded facts ofthe affirmative defense and thereby fills to meet the standard for

a motion to dismiss the affirmative defense.

People v. Skokie

Valley Asphalt

et aJ., PCB

96-98, 2003 III.

ENV

LEXIS *7.9, (June

2003).

In addition, when the

party alleging the affirmative defense

has raised the

possibility that it will prevail, the defense should not be

stricken.

Cole Taylor

Bank v.

Rowe Industries, PCB

01-173 slip op.

at 3

(June 6,

2002).

People v. Wood River,

PCB

99-120, 2002 III. ENV

LEXIS 437

(August

8, 2002).

Complainant does not argue

that the particulate matter willbe emitted.

Instead Complainant’s argument, that

“particulate matter could be emitted”

admits the possibility that

it could also, not be

emitted and

therefore admits the possibility that Respondent will prevail.

Respondent, by

informing opposing counsel that it intendsto

argue that the road is

paved

and therefore not an emission source, has

meet its pleading obligations.

It has

plainly set forth its defense and has

avoided

surprise to the opposing counseL

Complainant also argues “that the defense is argumentative” but gives no

further

information.

Nor does it explain why an “argumentative” defense would provide any basis

for dismissal.

Complainant further argues that the defense “raises

an interpretationofthe law”

but again

gives

no explanation

ofhow it does so or

why this

would merit

dismissal ofthe

defense.

Complainant may

disagree with Respondent’s factual

assertions

but Complainant

has raised no basis onwhich

this

Affirmative Defense could be stricken and Respondent

should be allowed to present its defense to the Board.

The

Complainant has simply not

provided

any

reasonto

dismiss this

defense and

so its Motion should be denied.

First Supplemental Affirmative

Defense to Count VI

In Count

IV, paragraph 18 of Complaint, the State allegedthat Respondent does

.not have a CAAPP permit.

This continues to be the case.

However since May 3, 2002

has had a federally enforceable state operating permit (“FESOP”) permit so it

is no

longer

necessaryfor

it to have a CAAPP permit

pursuant to 415 ILCS

5/39.5(2)(e).

The Respondent’s

obtaining

ofa FESOP

and its resulting exclusion from the

CAAPP program are new.facts which can be pled through an affirmative def~nse.As in

the First Supplemental Affirmative Defense to Count ifi, above, an alternative means was

used to achieve compliance with a rule so that a cessation ofnoncompliance with the rule

couldnot be plead by any means other than an affirmative defense.

Put differently QC

Finishers could not answer the Complaint by alleging that it had a CAAPP because it did

not have a CAAPP.

However, through an affirmative defense, it could indicate that it did

not need

CAAPP.

Again, Respondent appreciates the fact that the Board allowed

it to replead its

affirmative defense to clarify that the defense did not seek to excuse past noncompliance

and instead

was intendedto

informthe opposing counsel that from May

3, 2003 to the

present it is complying with a provision that

is an alternative to the pEovisions it is

alleged

to be

violating.

Complainant states (Motion page

that “compliance at a later date does not

excuse violations from

1995

until May

2002.

Since Respondent has now clarified

that

the

affirmative

defense applies to the period after May 3, 2002 (Supplemental Affirmative

Defenses First Affirmative Defense to Count VI,

paragraph 9) Complainant’s statement

has no relevancy.

Complainant also argues

that

Respondent has not alleged any

new facts or

arguments, apparently ignoring

the

fact

that

Complainant has

alleged that it has

a FESOP

and therefore does not

require a CAAPP.

The Supplemental Affirmative Defenses clearly states (paragraph

9) that it is an

affirmative defense forthe period oftime only from May3,

2002

to the present.

The fact

that compliance has been achieved is not being offered in mitigationofthe entire violation.

It is being offered as an absolute defense for partofthe allegation.

Complainant does not

specifically ask for dismissal ofthis count and gives no basis

on which it could be dismissed.

This Affirmative Defense is properlypled and valid

for

the time period for which it was plead, that is, May 3, 2002 to the present.. It addresses

newfacts outside the Complaint

specifically that Respondent is nownot required to

obtain a CAAPP because it has obtained aFESOP~The Attorney General’s motion to

dismiss has given

valid cause

for

dismissing the repled Supplemental Affirmative

Defense, therefore the

Respondent should be allowed to present its

defense

to the Board.

GENERAL AFTIRMATWE DEFENSES

First Supplemental

Affirmative

Defense to

All

Counts of the Complaint (Laches)

Respondent pled laches as its first general affirmative defense and set forth in great

detail the facts and circumstances surrounding the unfortunate and unusual situation that

led to

Respondent’s

unintentional

and

unknowing violations.

The Motion

Dismiss Supplemental Affirmative Defenses (“Motion”) seriously

mischaracterizes Respondent’s laches argument.

Contrary

to the Motion’s

assertion,

Respondent did not argue that the State was responsible

for.the confusion surrounding the

similarity between the Board’srules and the Cook

County ordinance,

(Motion page

nor

did Respondent argue that the State was liable for Respondent’s noncompliance (Motion

pages 6) and

it didnot argue

that, as a general matter,

the State is responsible for

educating emission sources.

(Motion page

10).

“Laches is an equitable doctrine that bars relief when a defendant has been misled

or prejudiced due to a plaintiffs delay in asserting a right.”

People v.

John

Crane, Inc.

PCB 01-76, slip op. at

8 (May

17, 2001).

The affirmative defense pled that

Finishers

was both misled and

prejudiced bythe

fact that the Illinois EPA waited too long to contact

it to

assert its

“rights”.

The Agency had the duty to

disseminate information “as may

be requiredto

carry

out the purposes ofthe Act.”

This need not be read broadly, as Complainant apparently

has done.

Motion page 10.

Respondent is not trying

assert that ignorance ofthe law is

an excuse, but given this particular

and extraordinary set offacts it is possible that the

Board will

find as a matter of equity that the Agenc~s

delay should foreclose it from

punishing

Finishers

for the violations

that occurred as a result ofthat delay.

Respondent

began

operations

1985.

It applied for Cook County permits and

several occasions made contact with its Cook County Environmental inspector.

The

Illinois

Environmental Protection Agency, which was charged with the duty to disseminate

information necessary to

carry out the Illinois

Environmental Protection Act’s purposes, in

1994,

and

again in 1997,

made

public statements bemoaning the

fact

that information

was

not being disseminated to

“smaller users.”

C Finishers, with at most

employees,

was

such a

smaller

user and was

making reasonable attemptsto ensure

that it was

compliance by contacting

its local inspector.

was

given bad advice but it heard nothing

from the statethat would have given it any indication

that

it needed to

inquire

further.

short the state had information that QC Finishers needed.

The state publicly

acknowledged

that

the information was needed.

The state had the duty to disseminate it,

and

the state delayed.

The Agency now seeksto punish Respondent for not acting onthe information

that

the Agency was withholding from it.

This is a uniquely unfair situation especially

given

C Finishers

size and

its reasonable attempts to.learn what it needed to do to

achieve compliance.

Respondent never tried to avoid complying with the law, rather it

sought

to do so

and was

misadvised.

“There

are

two principal elements oflaches:

lack ofdue diligence by the

party

asserting the claim

and prejudice tO the opposing

party.

(Citations omitted)”

People v.

John Crane,

slip op. at

Both elements have been pled.

The Motion argues that

the

defense has

not set forth the key elements ofa laches defense, but other

than

the

argument

regarding.

a delay in bringing suit the Motion gives no specifics regarding any other alleged

deficiencies.

Respondent Need

Only

Allege

Delay in

Asserting A Right

The Complainant begins by arguing that Respondent did not “allege

that there was

a delay in bringing the

suit.”

This

is too narrowa reading ofBoard precedent.

It is not

necessarythat Respondent plead a delay

in bringing a suit, only that it plead

a delay in

asserting a

right.

People v. Stein Steel Mills

Service, Inc.,

PCB 02-1, page

(April

18,

2002).

People v. John CraneInc.,

PCB 01-76,

(May 17,

2001.)

Although the

“right”

asserted, may in

particular case be a

suit, the assertion ofthe “right”

may occur in

other

ways.

For example in John Crane, the Board sustained an affirmative defense that pled the

Illinois Environmental

Protection Agency’s

“failure

file

its NOV notice

violation

a timely basis.”

John

Crane, slip op at 8.

Respondent had made substantial steps toward compliance by applying for a

permit in March of 1999 (see Complaint Count VI, para 17), and had begun installing

controls in 1999 (First Affirmative Defense to Count III, para

5).

See also First General

Affirmative Defense, para. 21.

All ofthis was accomplished before the Complaint was

filed in July of2000, so the delay in filing the suit was

not

what caused the

harm

Respondent.

this case it was the delay in contacting Respondent as pled in the

Supplemental Affirmative

Defense paragraphs 24 through 28

and 30 that cause the harm.

The initial contact took the form ofthe state inspector’s first visit in

1998 followed shortly

by a

Violation Notice.

Compliance efforts began immediately with the first contact, and

continued diligently, so it was in the years before that contact

that

the harm was done.

Complainant

Seeks to Attack the Board’s Ability to Recognizeand Hear a

Laches Defense

The

Complainant also asserts that several courts have held that the doctrine of

laches does not apply to the exercise ofa governmental function.

Motion pages 7 and 8.

To support this statement it cites two estate cases.

Since the Board is not a probate court

is it is unclear howthese cases would have any precedential value.

Curiously,

Complainant then goes on to

cite Hickey v. Illinois Central.R. R;

Co.

35 III 2d 427, 220

N.E.2d 415 (1996) in which Illinois Supreme Court clarified 1966 that lathes can be

applied to the state whenacting in its governmental capacity.

Complainant cited no Board cases in the sectionon laches eventhough the Board

has, in a long line ofrecent cases, dealt with the laches issue.

The Board has held that

inches may apply to the State in its governmentalcapacity and has denied the motions to

strike that defense.

People v.

Stein,Steel Mills Services, (PCB 0 1-2, slip op.

at 4-6 (April

18, 2002).

People v. State Oil

Co.

et p1,

PCB 97-103, slip op. at 3-4 (May 18, 2000).

People v Royster Clark.

PCB 02-08, slip op.

5-6

(Jan. 24, 2002).

People v. John

Crane Inc.,

PCB 01-76, (May

17, 2001).

Although all ofthe cases were previously cited

to Complainant (Response to Motion to Dismiss Affirmative Defenses, May 21, 2003)

Complainant has not addressed them.

Complainant also argues that “courts have consistently refused to

allow the

defense oflaches when the plaintiff..seeks to protect a public

interest.

Motion page 9-10.

In effect this argues that the ‘Board, which is charged with protecting the public interest,

should never accept a defense oflaches.

Complainant cites no Board cases or Illinois

court cases in support ofits argument.

In fact that argument ignores the Board

cases cited

in the previous paragraph.

The only two cases Complainant cites are.federalcourt cases.

Lake Michigan Federation v. Arm~v

Corps ofEngineers, 742 Fed.

Supp. 441

448 (1990)

is cited for the propositionthat courts refuse to

allow laches in matters ofpublic interest,

but a close reading ofthe case will reveal that the court says only that courts are

“extremely reluctant” to apply the doctrine.

This statement is at best only dicta, as the

court goes on to make its decision on laches on other grounds.

Complainant’s last attack on the use ofa inches defense before the Board (Motion

page

10) appears to be that section 2(b) ofthe Act precludes the laches defense.

Not only

does the language of2(b) not support this interpretation but the Complainant again

ignores all ofthe Board precedent to the contrary.

Stein Steel Mills

Services, State Oil

Co., Rovster Clark, John Crane Inc.

(all supra)

The Board can, and has, heard laches defenses

in environmental cases, clearly

recognizing that it may consider the element offairness inherent in that equitable doctrine.

In this case the Agenc~s

failure to take the simple step ofcontacting an easily

identifiable group ofsources and informing them ofthe need for permits and emission

controls gave rise

tommyyears of

unknowing and unintentional violations.

It would be

unfair

for the

state

pursue

its

claims

now for the

very

violations that

it could and should

have

avoided years

ago.

Had the state asserted its

right to

permitting and emissions

controls

years earlier, merely by fhlfiuing

its

duty

disseminate information,

the

state,

the

environment

and

Finishers would all be in a better

position now.

Respondent has pledthat it was harmed. by Complainant’s delay and lack

ofdue

diligence.

It has

shown that unusual circumstances exist here.

It has

raised

the

possibility

that it canprevail.

It should be allowed to go forward and to present its defense to

the

Board.

Second Supplemental

Affirmative

Defense to

Counts ofthe Complaint

(Estoppel)

Respondent pleads estoppel as its second

affirmative defense.

Estoppel maybe

applied when a

party reasonably and detrimentally

relies onthe conduct ofanother.

People v

Douglas

Furniture,

PCB

97-133, 1997

Iii ENV LEXIS 221

(1997).

Or, as more

recently expressed

when the conduct or

statements lull a person

“into a

false sense

security” Brian

Tegeler v.

Industrial Commission 173 III 2d

498

506,

672 N.E.2d 1126

1129,

1996IIILEXIS 110*

11,220 IliDec.

114 (IIS. Ct October 18,

1996)

As an initial matter it should be noted that Complainant misstates Respondent’s

defense.

Respondent does not allege that its duty

to comply

with

the

law was conditional.

Respondent believed

that it

was in

compliance until the summer

of1998.

Its belief

was

reasonable and

was

based

both

IEPA’s

failure

act

and

the Cook County

inspectors

uncontradicted statement as to the

law.

Upon

learning that it had beenmisled,

Finishers acknowledged

the law

and

promptly complied with it.

Respondent also does not, contraryto

Complainant’s assertion seek to “relieve the

Respondent

from knowing or

following the law”.

Motion page

11.

Respondent merely

seeks to, in the interest offairness, disallow Respondent’s claim

for past violations.

Last,

it should be noted that contraryto

Complainant’s statement, Respondent did not

allege

that

the Cook

County inspector was incompetent.

Respondent is not alleging that the IEPA must identif~’and contact every emission

source prior

obtaining penalties,

but

Finishers case

unique.

It had Cook

County

permits and was complying with an older version ofthe Board’s rules which had been

codified into law at the county

level.

Certainly informing

C Finishers that it needed

more permits and controls would have fit within the purview ofinformation that was

“required to carry

out the

purposes ofthe Act.”

415 ILCS

5/4(b).

The EPA

had

acknowledged that

it needed to

disseminate information to small sources and to

coaters.

As a matter ofequity it

would be unfair forthe state to pursue a claim against

Finishers.

Complainant’s Motion to Dismiss is predicated on two bases.

First, that “estoppel

niay

not be

asserted

in matters

involving a

public

right” and second, that

Finishers has

failed

allege the elements ofestoppel.

Complainant Seeks to Attack the Board’s Ability to Recognize and Hear an

Estoppel Defense

Complainant

argues that “it is

well-established rule oflaw that

the

doctrine

~stoppe1

may

notbe

asserted

against the State in actions involving public

rights.”

Motion

pages 12

and

13.

However

the

case that Complainant cites for

this

proposition is

distinguishable.

County Landfill

v. PCB, 41111 App.3d 249, 353 N.E. 2d 316 (2nd

Dist.

1976). dealt with

landfill operators who sought to avoid responsibility for continuing

leachate problems by claiming that the IEPA’s predecessor agency had approved the

operation.

Finding that the EPA

was

estopped would

also have permitted

the pollution

to continue.

That

is not the

case

here.

Respondent does not seek to avoid complying with

the law

and has

spent considerable time

and effort

in doing so.

Respondent simply seeks

to avoid being punished for a noncompliance situation fostered by Complainant

and

which

Respondent could not reasonably have avoided.

Complainant’s Motion

also ignores the Illinois Supreme Court’s statements that

will

“hold the public estopped or not as

right and

justice

require”

and that

“the reluctance

to apply equitable principles against the State does not

amount

to an absolute immunity of

the state from inches

and

estoppel under all

circumstances.”

Ilickey v. Illinois Central

Railroad,

35111. 2nd at 448-49, 220 N. E. 2d at 426

(IL

S.Ct.1996) (rehearing denied.)

Complainant

also ignores the Board cases which have dealt with this argument.

The Board has found

that

estoppel

canbe asserted and

has refused to

strike

affirmative

defenses

that allege

it.

John Crane,

supra.

People v. Douglas

Furniture,

PCB 97-133,

(May

1997).

The

Board’s recent decision in

Illinois EPA

Charles Goodwin, (AC 02-17, 2003

Ill

ENV

LEXIS

429 (July

11, 2002) reconsideration denied,

2002 Ill

ENV LEXIS

576

(October 3, 2002)) is ofinterest here.

In that case Mr. Goodwin

was given contradictory

directions

from

two bureaus ofthe Agency.

The Board found that as a result the

administrative citation was improperly issued.

In its reasoning, the Board applied an

estoppel-like theory without labeling it as estoppel.

In QC Finishers’ case instead ofbeing given contradictory advice, which might

have prompted it to inquire further, QC Finishers was

given only bad advice, thus

Finishers case for estoppel is even more compelling that Mr.

Goodwin’s.

Respondent has Pled the Elements of Estoppel

Complainant also argues that

C Finishers has failed to allege the elements of

estoppel, in particular that it has failed to show a misrepresentation.

Complainant quotes

(Motion,

page

11) the

six elementslisted

Vaughn v.

Speaker,

126, IlL2d

150,

533

N.E.2d 885, 890 (1989).

With regard to the

first two factors however, the Illinois Supreme Court recently

spoke to what is

necessary

to establish a misrepresentation.

...regarding the

first two

Vaughn

elements the representation need not be

fraudulent

the

strict

legal

sense

done

with

intent

mislead

deceive.

Ceres Illinois

Inc. v.

Illinois Scrap Processing Inc.

114111.

133,

148,

102

Ill Dec.

379,

500

(1986)...The

following

corollary

must

be remembered:

‘Estoppel

may arise

from silence as well as words.

may arise

where

there is

a duty to

speak

and the party

on whom the duty

rests has an opportunity to

speak,

and,

knowing the

circumstances, keeps

silent.

Citations.

the duty of a

person

having a

right,

and

seeing

another

about to

commit

act

infringing

it,

assert

his

right.

cannot by

his

silence

induce or

encourage commission of

the

act and then

heard to

complain.’

quoting

Bondy v.

Samuels,

333

Ill.

535,

546,

165

N. E.

181

(1929)...

Geddes et al

Mill Creek Country Club,

Inc. et al,

196

III 2d 302,

751 N.

E. 2d 1150,

256

Ill Dec. 313 (IL S. Ct.

May 24, 2001).

Geddes,

was decided long afterthe cases cited in Complainant’s briefand

represents the Illinois Supreme Court’s most recent pronouncement onwhat constitutes a

misrepresentation.

Complainant also cites to Paviakos v. Department of

Labor,

111111 2d 257,

489

N.E. 2d 1325 (1985) for the proposition

that

a misrepresentation must be an affirmative

act.

In that case the

Illinois

Supreme Court found that there was no estoppel where the

Department ofLabor failed to record a lien,

but

had no duty to recordit.

That

is not the

case here.

The Act provides

that

the IEPA has a duty.

should also be noted that

Paviakos

was

decided before the Illinois Supreme Court adopted a broader definition of

misrepresentation in Geddes.