ILLINOIS POLLUTION CONTROL BOARD
May 20, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
DRAW DRAPE CLEANERS, INC., an
Illinois corporation, AMERICAN DRAPERY
CLEANERS & FLAMEPROOFERS, INC., an
Illinois corporation, and RICHARD ZELL,
an Illinois resident,
Respondents.
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PCB 03-51
(Enforcement - Air)
ORDER OF THE BOARD (by J.P. Novak):
The Board today addresses the answer to an amended complaint and affirmative defenses
filed by Draw Drape Cleaners, Inc. (Draw Drape), American Drapery Cleaners and
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The Board will first summarize the procedural background of the case and the affirmative
PROCEDURAL BACKGROUND
Respondents operate a petroleum solvent dry cleaning operation located at 2235-2239
West Roscoe Street, Chicago, Cook County. On October 15, 2002, the complainant filed an
eight-count complaint against Draw Drape. The complainant alleged that Draw Drape violated
various provisions of the Environmental Protection Act (Act), the Board’s air pollution
regulations, and Draw Drape’s Federally Enforceable State Operating Permit (FESOP). The
complainant further alleged that Draw Drape violated these provisions by emitting volatile
organic material through uncontrolled operation of its equipment.
On December 17, 2002, Draw Drape filed an answer to the complaint and raised five
affirmative defenses (First Answer). On January 16, 2003, the complainant filed a motion to
strike or dismiss Draw Drape’s affirmative defenses (First Motion to Strike). On February 20,
2003, the Board issued an order striking all five of Draw Drape’s affirmative defenses. On
August 21, 2003, the Board granted the complainant’s motion for partial summary judgment,
finding that Draw Drape had violated the Act and the Board’s regulations as alleged in counts
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IV, V, VII, and VIII. In the same order, the Board directed the parties to proceed to hearing on
the remaining counts and on remedy and penalty issues.
The complainant filed an Amended Complaint for Civil Penalties (Amended Complaint)
on December 20, 2003. The Amended Complaint adds as respondents ADCAFI and Zell. The
complainant filed an Amended Notice of Filing for the Amended Complaint on January 20,
2004. On March 2, 2004, respondents filed an Answer to the Amended Complaint (Second
Answer). In their Second Answer, respondents raised five affirmative defenses. Except for non-
substantive corrections, the five affirmative defenses raised in the Second Answer are virtually
identical to those raised in the First Answer. On April 15, 2004, the complainant filed its Second
Motion to Strike or Dismiss the Respondents’ Affirmative Defenses (Second Motion to Strike).
Respondents have filed no response to the Second Motion to Strike.
AFFIRMATIVE DEFENSES
The respondents’ five affirmative defenses are summarized below, and each will be
referred to by the number assigned it by the respondents in their Second Answer.
Respondents’ first affirmative defense is that in 1994 a fire at respondents’ plant
damaged or destroyed part of the physical plant and equipment including a dryer identical to
Dryer #2. Respondents further allege that the damaged dryer was installed in the 1960s and,
pursuant to the Act, was “grandfathered in” and did not require a permit.
Respondents’ second affirmative defense is that, since Dryer #2 replaced an identical
dryer damaged in the 1994 fire, Dryer #2 has mainly been used to ready drapes for pressing by
“fluffing.” Respondents further state that the process of fluffing does not emit VOMs into the
environment. Finally, respondents state that, during the past year, Dryer #2 has been used only
for fluffing and has not emitted VOMs into the environment.
Respondents’ third affirmative defense is that Dryer #2 was installed after the 1994 fire
because there was no recovery dryer available at that time in the size needed for its operation.
Respondents further state that, when a recovery dryer of the proper size became available in
March 2002, respondent ordered the new recovery dryer immediately. Respondents further state
that the manufacturer accepted its order in May 2002 and delivered the new Dryer #3 in late
September 2002. Finally, respondents state that Dryer #3 is now being installed and that Permit
#02030079 has been obtained for its operation.
In their fourth affirmative defense, respondents state that they have always operated the
plant below the emissions allowed under its FESOP permit #95100005. Respondents further
state that they would have to emit an additional 1,000 gallons per year to reach the emissions
allowed under its FESOP.
In their fifth affirmative defense, respondents state that their operations are unique in that
their process commercially flame proofs drapes in a cost-effective manner that triples the lives of
the drapes. Respondents further state that the State of Illinois has approved their operations for
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use by schools and related entities and that the State “lists Respondent’s operations as a source
on the State’s Web site.” Second Answer at 21.
MOTION TO STRIKE
In its Second Motion to Strike, the complainant incorporates the text of its First Motion to
Strike into its Second Motion to Strike. Secon Motion to Strike at 2. In doing so, the
complainant argues that “[a]ll of the arguments in Complainant’s First Motion to Strike
pertaining to Respondent Draw Drape also pertain to Respondents ADCAFI and Zell in this
Second Motion to Strike.”
Id
. The complainant further “requests that the Board follow its
holding in its February 20, 2003 order striking all five of Draw Drape’s affirmative defenses with
respect to the identical affirmative defenses in the Second Answer.”
Id
. at 3.
DISCUSSION
As the Board stated in its February 20, 2003, order, in an affirmative defense the
respondent alleges “new facts or argument that, if true, will defeat . . . [complainant’s] claim
even if all allegations in the complaint are true.” People v. Community Landfill Co., PCB 97-
193 (Aug. 6, 1998). A valid affirmative defense gives color to the opposing party’s claim but
then asserts new matter which defeats an apparent right. Condon v. American Telephone and
Telegraph Co., 210 Ill. App. 3d 701, 569 N.E.2d 518, 523 (2nd Dist. 1991), citing The Worner
Agency, Inc. v. Doyle, 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635 (4th Dist. 1984).
As the Board also stated in its February 20, 2003, order, a motion to strike an affirmative
defense admits well-pleaded facts constituting the defense, and attacks only the legal sufficiency
of the facts. “Where 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, 630-31, 609 N.E.2d 842, 853-54 (1st Dist.
1993), citing Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 854, 539 N.E.2d 787, 791
(2nd Dist. 1989).
In response to the first affirmative defense, the complainant incorporates from its First
Motion to Strike the argument that the amended complaint does not refer to a dryer installed in
the 1960s and that any issue raised with regard to it is not relevant to the amended complaint. As
it stated in its February 20, 2003 order, the Board finds that respondents’ first affirmative defense
does not allege “new facts or argument that, if true, will defeat . . . [complainant’s] claim even if
all allegations in the complaint are true. People v. Community Landfill Co., PCB 97-193 (Aug.
6, 1998). Even if a dryer identical to Dryer #2 was “grandfathered in” and did not require a
permit, it is not relevant to allegations of violations with regard to Dryer #1 and Dryer #2.
Accordingly, the Board strikes the respondents’ first affirmative defense.
In response to the second affirmative defense, the complainant incorporates from its First
Motion to Strike the argument that respondents simply do not address VOM emissions from
Dryer #2 before late 2001. As it stated in its February 20, 2003 order, the Board finds that
respondents’ second affirmative defense does not allege “new facts or argument that, if true, will
defeat . . . [complainant’s] claim even if all allegations in the complaint are true. People v.
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Community Landfill Co., PCB 97-193 (Aug. 6, 1998). Even if Dryer #2 had emitted no VOM
during a one-year period, the second affirmative defense does not address emissions alleged to
have occurred before that time. Accordingly the Board strikes the respondents’ second
affirmative defense.
In response to the third affirmative defense, the complainant incorporates from its First
Motion to Strike the argument that respondents’ need for Dryer #2 for their operations is not
relevant to the violations alleged. The complainant further argues that the amended complaint
does not address Dryer #3, making any affirmative defense with regard to Dryer #3 irrelevant.
As it stated in its February 20, 2003, order, the Board finds that respondents’ third affirmative
defense does not allege “new facts or argument that, if true, will defeat . . . [complainant’s] claim
even if all allegations in the complaint are true. People v. Community Landfill Co., PCB 97-193
(Aug. 6, 1998). Both the professed need for Dryer #2 and the installation of Dryer #3 are not
relevant to violations alleged in the Amended Complaint. Accordingly, the Board strikes the
respondents’ third affirmative defense.
In response to the fourth affirmative defense, the complainant incorporates from its First
Motion to Strike the argument that it is not clear whether respondents are referring to VOM
emissions. The complainant states that VOM is not specifically mentioned in the fourth
affirmative defense and that FESOP references to VOM emissions are expressed in tons/year and
not in gallons/year. As it stated in its February 20, 2003 order, the Board finds that respondents’
fourth affirmative defense does not allege “new facts or argument that, if true, will defeat . . .
[complainant’s] claim even if all allegations in the complaint are true. People v. Community
Landfill Co., PCB 97-193 (Aug. 6, 1998). It is not clear whether the respondents refer to
emissions of VOM because VOM is not mentioned in the fourth affirmative defense. Also, since
the complainant does not allege a violation of the solvent use limits, the reference to gallons of
solvent per year is not relevant. Accordingly, the Board strikes the respondents’ fourth
affirmative defense.
In response to the fifth affirmative defense, the complainant incorporates from its First
Motion to Strike the argument that the unique nature of respondents’ business does not excuse it
from compliance with the Act, Board regulations, or federal regulations. As it stated in its
February 20, 2003, order, the Board finds that respondents’ fifth affirmative defense does not
allege “new facts or argument that, if true, will defeat . . . [complainant’s] claim even if all
allegations in the complaint are true. People v. Community Landfill Co., PCB 97-193 (Aug. 6,
1998). The unique nature of the respondents’ business does not excuse it from compliance with
the Act, Board regulations, or federal regulations. Accordingly, the Board strikes the
respondents’ fifth affirmative defense.
While the Board today strikes the five affirmative defenses raised by the respondents in
their Second Answer, it may be appropriate for respondents to raise some of these matters at
hearing. Where issues such as compliance history may be relevant to the Board’s consideration
of various factors under sections 33(c) and 42 (h) of the Act, respondents are free to address
them at hearing.
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CONCLUSION
The Board grants the motion to strike respondents’ affirmative defenses and directs the
case to proceed expeditiously to hearing on the remaining counts and on remedy and penalty
issues.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on May 20, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
