•
.
RECEWED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
MAY 1~2OO4
PEOPLE OF. THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
)
STATEOFILLINOIS
General of the State of Illinois
)
Pollution
Control
Board
Complainant,
V.
)
PCB 04-9
(Enforcement
-
Air)
AARGUS PLASTICS, INC.,
an Illinois corporation,
Respondent.
NOTICE OF FILING
TO: See Attached Service List
PLEASE TAKE NOTICE that on May 14, 2004, the People of the
State of Illinois filed with the Illinois Pollution Control Board
a Reply to Respondent’s Response to Complainant’s Motion to
Strike or Dismiss Respondent’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
188W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-6986
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Ivis.
Maureen Wozniak, Esq.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Nr. Leo P. Dombrowski
• V~ildman, Harrold, Allen & Dixon LLP
225 West Wacker Drive
• Chicago, IL 60606
Mr. Thomas Golz
Mr. John J. Cullerton
Fagel Haber LLC
55 E. Monroe Street,
40t~
Floor
Chicago, IL 60603
•
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDRECE~VED
•
•
•
.
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
)
MAY 142004
General of the State of Illinois
STATE OF ILLINOIS
•
•
Pollution Control Board
Complainant,
v.
)
PCB04-9
(Enforcement
-
Air)
AARGUS PLASTICS, INC.,
an Illinois corporation,
Respondent.
COMPLAINANT’S REPLY
TO
RESPONDENT’S RESPONSE
TO 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, Section 2-
615 of the Illinois Code of Civil Procedure, and the April 26,
2004 Pollution Control Board Hearing Officer order granting
Complainant’s oral motion to file a Reply, hereby replies to
Respondent AARGUS PLASTICS, INC. ‘s Response to Complainant’s
Motion to Strike or Dismiss Respondent’s Defenses. In support of
its Reply, Complainant states as follows:
INTRODUCTION
On February 3, 2004, Respondent filed its answer and
thirteen affirmative defenses to the complaint. On March 5,
2004, Complainant filed a Motion to Strike all of Respondent’s
Affirmative Defenses (“Motion to Strike”)
.
On April 2, 2004,
1
• •
Respondent filed its Response to Complainant’s Motion to Strike
(“Response”)
. ..
•
.
•
ARGUMENT
Sufficient PleadincT of Affirmative Defenses
As Complainant stated in its Motion to Strike, 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 Iii.
•
App. 3d 614, ‘630, 609 N.E.2d 842, 853 (1st Dist. 1993)
• Complainant stated that Respondent’s affirmative defenses 1 and 3
were deficient because, among other reasons, they lacked the
requisite specificity to be considered valid.
Respondent cites Section 2-612(b) of the Illinois Code of
Civil Procedure which provides that no pleading is “bad in
substance” if it “reasonably informs” the opposite party of the
defense., Under Section 2-612(b), the first and third affirmative
• defenses must fail. Complainant is not “reasonably informed” by
the first or, third affirmative defense; the first affirmative
defense is an extremely general statement alleging that
Complainant has not stated a claim but does not provide the
rationale behind the statement. The third’ affirmative defense
states that’ the Complaint is barred by the applicable statute of
limitations but neglects to explain which statute of limitations
applies (most. likely because there is no applicable statuteof
2
‘limitations)
.
Pursuant to Section 2-612 (b), the first and third
affirmative defenses are bad in substance and must fail.
Respondent then cites Section 2-607(a) of the Illinois Code
of Civil Procedure and suggests that Complainant should request a
bill of particulars from Respondent.’ Although Complainant is
willing to request a bill of particulars from Respondent if
ordered to do so by the Board, Complainant deems such a request
as an unnecessary step: In its Response, Respondent could have
simply added details to the first and third affirmative defenses
to make them more specific but chose not to. Granted, it would
likely be impossible for Respondent to add such details given the
fact that the Complaint stated a claim upon which relief can be
granted (thereby negating the first affirmative defense) and the
fact that there is no applicable statut~of limitations (thereby
negating the third affirmative defense).
According to the holding in International Insurance, the
Board should strike or dismiss the first and third affirmative
‘defenses for lack of specificity.
Affirmative Defense 2 (Section
31 of the Act/Jurisdiction)
Respondent’s arguments regarding the Board’s lack of
jurisdiction in this matter directly conflict with Board
precedent that holds otherwise. Respondent relies on outdated
case law to’ support its argument. Respondent even admits in a
footnote that the Board’s current position with respect to
•3
Section 31 of the Illinois Environmental Protection Act (“Act”,),
• (415 ILCS 5/31 (2004)) is contrary to Respondent’s position. See
Response at 6,’ footnote 2.
Respondent also argues that the Board has misinterpreted
Section 31 of the Act and ignored principles of statutory
‘construction. Respondent’s argument is flawed as Respondent
• clearly ignores the Board’s well-reasoned and thorough analysis
of Section 31 in People v. Crane, •PCB 01-176 (May 17, .2001)
.
In
Crane, the BOard stated that the 180-day time period proscribed
in Section 31. is not a statute of limitations. In examining the
legislative intent, the Board in Crane reasoned that Section 31
is instead a tool which allows potential violators of the Act an
opportunity tO meet with Illinois EPA to discuss and negotiate
the alleged violations of’ the Act prior to referral to the
Attorney General’s Office (“AGO”).
•
See also People v. Eagle-
Picher-Boge,PCB 99-152 (July 22;. 1999).
The decision in Eagle-Picher-Boge is very similar to the
holding in Crane. In its Response, Respondent misstates the
Board’s holding
in
the Eagle-Picher-Boge decision. Nowhere in
Eagle-Picher-Boge does the Board hold that it is divested of
jurisdiction for Illinois EPA’s failure, to adhere strictly to the
180 day deadline set in Section 31. In fact, the Board held that
it did have jurisdiction over the counts in that case that were
referred by the, Illinois EPA, ‘much as the Board has jurisdiction
4.
.
over the Illinois EPA-referred Counts in this matter.
If Illinois EPA and the parties cannot agree to settle the
matter between themselves, the Illinois EPA may then refer the
matter to the AGO for prosecution. Pursuant to Section 31 of the
Act, representatives of Respondent and Illinois EPA met in May
and August of 2002 to discuss this matter prior to referral of
this matter to the AGO.
Respondent also ‘argues that the deadlines set forth in
Section 31 are mandatory rather than directory. In Crane the
Board held that while the process between Illinois EPA and
Respondent prior to referral of the matter to the AGO is
mandatory, the 180-day time frame is directOry. The Board
presented a detailed analysis of its interpretation. Notably,
the Board quoted the U.S. Supreme Court ‘in holding that the
government’s failure to meet a specified deadline in a particular
matter does not divest the government of jurisdiction in that
matter if there is no consequence for failure to comply with the
deadline. Crane citing Brock v. Pierce County, 476 U.S. 253,
259, 106 S.Ct. 1834, 1838-1839 (1986)
.‘
There is no consequence
in the Act for failure to comply with the 180-day deadline in
Section 31.
Neither the Illinois EPA nor the AGO has violated Section
1,,
In Brock, the Court also holds that the term “shall” in
the statute at issue is directory rather than mandatory.
5
31. Accordingly, the Board has jurisdiction over this matter.
Following the Board’s decision in Crane and other recent cases,
Respondent’s second affirmative defense must be stricken or
dismissed.
Affirmative Defenses 4 (Laches)
The Board struck an affirmative defense of laches in People
v. Big 0 Inc., PCB 97-130 (April 17, 1997) for: the following
reason:
,
.,
, .
In’ assessing the period in which claims will
be barred by laches, equity follows the law,
and generally courts of equitywill adopt the
period’ of limitations established by statute.
(Citations omitted.) Thus if the right to
bring a lawsuit, is. not barred by the statute
of limitations, unless conduct or special
circumstances make it inequitable to’ grant
relief, the equitable doctrine of laches does
not bar a lawsuit either.
‘As stated above, there is no statute of limitations which applies
to the Act. Furthermore, ,there is no conduct nor special
circumstances in this matter which would lend itself to laches.
Laches cannot be a bar to the Complaint.
In b,oth People v. QC Finishers, Inc., PCB 01-7. (June 19,
2003) and People v. Douglas Furniture of California, Inc., PCB
97-133 (May 1, 1997), the Board held that an affirmative defense
which concerns the imposition of a penalty as opposed to the
underlying cause :of action is not an affirmative defense to,that
cause of action,. Respondent’s argument concerning laches centers
on the potential imposition of penalties, not on the underlying
6
cause of action.
The Board should therefore strike or dismiss Respondent’s
fourth affirmative defense.
Affirmative Defense 5
(Waiver)
Complainant finds no merit in Respondent’s waiver argument.
Respondent claims that Complainant relinquished its right to file
an enforcement action in this matter because the State inspected
Respondent’s facility in the past and at some point assured
Respondent that it was “taking appropriate action”.
Complainant finds no correlation between Respondent’s
argument and the doctrine of waiver. Waiver is “when a party
intentionally relinquishes a known right or his conduct warrants
an inference to relinquish the right.” Crane see also Hartford
Accident and Indemnity Co. v. D.F. Bast, Inc., 56 Ill. App. 3d
960, 952, 372 N.E.2d 829, 831 (1st Dist. 1977)
;
People v.
Panhandle Eastern Pipeline Co., PCE 99-191 (Nov. 15, 2001);
Douglas Furniture, slip op. at 5.
The fact that Illinois EPA or, some other arm of State
government told Respondent that it was “taking appropriate
action” should not give rise to an affirmative defense based on
waiver. Although a representative of the State may have assured
Respondent at some point in the past that it was taking
appropriate action’, Respondent cannot now argue that such conduct
amounts to the State intentionally relinquishing its right to
7
bring an enforcement action against Respondent. In addition, the
State’s conduct does not amount to an interference which
relinquishes a right to bring an enforcement action.
According to Respondent’s argument, the State could conduct
an inspection at a facility and give that facility a passing
grade at that inspection. At a subsequent inspection where the
State finds, new violations of the Act (or violations of the Act
that were not readily apparent during the first inspection)
Respondent’s logic would dictate that the State be barred from
bringing an enforcement action against the facility solely based’
on representations made at the first’ inspection. Such an absurd
result would severely hamper the efforts of the State to protect
human, health ,and the environment. See Panhandle Eastern,
supra.
Furthermore,’ Respondent’s’ only argument for asserting waiver
pertains to penalties,. According to the holdings in both Douglas
Furniture and OC Finishers a defense that ‘concerns a penalty and
not the underlying cause of action is not an affirmative defense
“to that,cause of. action.
,
Pursuant to the Board holdings in OC Finishers, Douglas
Furniture, and’Panhandle’Eastern, Respondent cannot hide behind
‘the affirmative defense of waiver, and the Board should
accordingly strike or dismiäs it.
‘
Affirmative Defenses’ 6 and 11 (Estoppel)
,
In the Response,.Respondent applies the three-part test for
8
estoppel to this matter and concludes that it has a valid
affirmative defense. However, Respondent never states’ that
Illinois EPA made representations that it knew were untrue
(second prong of the estoppel test), nor does Respondent state
that Illinois EPA engaged in an affirmative act (third prong of
the estoppel test)
.
“Respondent’s claim that Illinois EPA waited
to issue violation notices does not constitute an affirmative
act.
The Illinois Supreme Court has held that
The Court’s reluctance to apply the doctrine
of estoppel against the State has been
motivated bythe concern that doing so may
impair the functioning of the State in the
discharge of its government functions, and
that valuable public interests may be
jeopardized or lost by the negligence,
mistakes, or inattention’of public officials.
Brown’s Furniture Inc. v. Wagner, 171 Ill.2d
410, 431-432, 665N.E.2d 795, 806 (1996)
citing Hickey v. Illinois Central Railroad,
35 Ill. 2d 427, 447-48, 220 N.E.2d 415, 426
(1956); see also Panhandle Eastern; People v.
White & Brewer Trucking, PCB 96-250 (March
20, 1997), slip op. at 10.
If the Board refuses to strike or dismiss Respondent’s estoppel
defenses, the Board will not address the Illinois Supreme Court’s
concern. The ability of Illinois EPA to carry out its duties may
be compromised merely because (as Respondent’ alleges) it waited
to issue Violation Notices. In order to address the Illinois
Supreme Court’s concern, the Board should strike Respondent’s
sixth and eleventh affirmative defenses.
9
Affirmative Defenses 12 and 13
Respondent basically admits that its twelfth and thirteenth
affirmative defenses should be ‘stricken or dismissed when it
stated that the allegations from the Complaint recited in those
affirmative defenses are valid. See Response at 10.
CONCLUSION
As states, in the Motion to Strike, 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.
PEOPLE OF THE STATE OF ILLINOIS,
exrel.
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
G: \Environrn~nta1 Enforcernent\JOEL\Case Docunierits\Aargus PlaBtics\Motions\mot-strk-aef-def-reply.wpd
10
CERTIFICATE OF SERVICE
I,
JOEL
J. STERNSTEIN, an
Assistant Attorney General,
certify that on the
14th
day of May 2004, I caused to be served
by First Class Mail the foregoing Reply to Respondent’s Response
to Complainant’s Motion to Strike or Dismiss Respondent’s
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
