CL~iRK’S
Or~K~
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
FE3 ~~7~25
PEOPLE
OF THE STATE OF ILLINOIS,
)
ri~r
OF~LL~M~
by
LISA
MADIGAN,
Attorney
).
~
cont~’o~
Bosrd
General
of
the
State
of
Illinois,
Complainant,
-vs-
)
PCB
No.
04-207
(Enforcement)
EDWARD PRUIM,
an individual,
and
ROBERT PRUIM,
an individual,
Respondents.
NOTICE OF FILING
PLEASE
TAKE
NOTICE
that
I have today,
February
4,
2005,
filed with the Clerk of the Illinois Pollution Control Board,
Complainant’s Reply and Motion to Strike Affirmative Defenses,
a
copy of which is attached and herewith served upon you.
Respectfully Submitted,
LISA MADIGANJ
Att~ney Ger*ral of the
ft~e of
I1J/inois
By:
________________________
9h~’istopherGrant
As~istantAttorney General
Envirotimental Bureau
188 West Randolph,
#2001
Chicago,
IL 60601
312-814-5388
c~
r~
~
‘~
CLI~F~K’S
OFF~C~I
BEFORE
THE ILLINOIS
POLLUTION CONTROL BOARD
F~3~ ~2~J~5
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF ~LL~NO~S
by
LISA
MADIGAN,
Attorney
)
Po~ut!onConir~Co~rd
General
of
the
State
of
Illinois,
Complainant,
-vs-
)
PCB
No.
04-207
(Enforcement)
EDWARD
PRUIM,
an
individual,
and
ROBERT
PRUIM,
an
individual,
Respondents.
COMPLAINANT’S REPLY AND MOTION TO STRIKE RESPONDENTS
EDWARD PRUIM AND ROBERT PRUIM’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 Rules and Section 2-615
of the
Illinois
Code of Civil Procedure,
now replies
to
Respondents,
EDWARD PRUIM and ROBERT PRUIM’S First Affirmative
Defense, and moves for an order striking and dismissing the
Respondents’
Second Affirmative Defense.
In support thereof,
Complainant states as follows:
1.
On May 21,
2004,
Complainant filed its cbmplaint
against the Respondents.
The Respondents subsequently moved to
dismiss the complaint on various grounds.
On November
4,
2004,
the Board denied Respondents’ motion, and directed the case to
proceed to hearing.
2.
On January 4,
2005,
Respondents Edward Pruim and Robert
1
Pruim
filed
separate
answers
to
the
Complaint.
Each
answer
included
two
affirmative defenses.
The Affirmative Defenses are
identical
in
both
pleadings.
In
the
interest
of
economy,
Complainant requests that the Board allow it
to
reply
to
the
First Affirmative Defense in both Answers, and moves
to Strike
the Second Affirmative Defense
in
both,
in a single Reply/Motion
to Strike.
I.
LEGAL STANDARD
FOR AFFIRMATIVE
DEFENSES
3.
An
affirmative
defense
is
“matter
asserted
by
a
defendant which,
assuming the complaint
to be true,
constitutes a
defense
to
it.” BLACK’S LAW DICTIONARY
60
(6th ed.
1990) (emphasis
added)
.
In other words,
an affirmative defense must give color
to the opposing party’s claim and then assert new matter by which
the apparent right
is defeated.
Ferris Elevator Company,
Inc.
v.
Neffco,
Inc.,
285 Ill. App.
3d 350,354
(3rd Dist.
1996).
An
affirmative defense confesses or admits the cause of action
alleged by the Complainant,
then seeks to avoid it by asserting a
new matter not contained in the complaint and answer.
Worner
Agency,
Inc.
v.
Doyle,
121 Ill. App.
3d 219,222-223,
(4th Dist.
1984)
.
In addition,
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,
~
(1st Dist.
1993)
2
II.
REPLY TO RESPONDENTS’
FIRST AFFIRMATIVE
DEFENSE
4.
Edward Pruim and Robert Pruim’s first affirmative
defenses each provide:
This complaint is barred because it is prejudicial
to
Respondent,
is not timely filed and the allegations in
the compliant are nearly identical
to the allegations
contained
in
the
Second
Amended
Complaint,
of
the
related
case,
People
v.
Community
Landfill
Company,
PCB
97-197
(Enforcement).
The allegations in this
Complaint are based on documents
that have been in the
possession of the Illinois
Environmental
Protection
Agency since 1993,
1995,
and 1996.
Th Allegations in
this Complainant were known to the Complainant when
the
1997 Complaint was filed. Respondents have been the
owners
of
CLC
since
the
inception
of
the
1997
Complaint.
All
facts
alleged
in
this
Complaint
were
known
to the Complainant since the related Complaint
was filed in 1997.
5.
Although the Respondents do not identify it as
such,
they appear to allege the affirmative defense of Laches.
The
elements of Laches have been described by the Board as a lack of
diligence by the party asserting the claim,
and prejudice to the
opposing party.
People
v.
John Crane,
Inc.,
PCB 01-76
(May 17,
2001,
slip op.
at
8).
Although recognizing the defense, the
Board notes that
it is applicable to government enforcement
actions only under compelling circumstances.
Id.
The Illinois
Supreme court has held that equitable defenses
such
as Laches
do not apply to public bodies under usual circumstances.
Hickey
v.
Illinois Central Railroad Co.,
35
Ill.
2d 414,
425
1966.
And the State cannot be estopped from exercise of its police
powers.
Id.
(citing
People
v. Levy Circulating Co.,
17
Ill.
2d
3
168
1959)
REPLY:
The Complainant denies that either Respondent has
been prejudiced by any delay in filing this Complaint,
and notes
that Respondents admit that they own the Respondent
in PCB 97-
193.
As owners they are fully aware of the allegations and facts
related to that earlier-filed matter,
and to those of this case.
Moreover,
Complainant denies that the facts stated in
Respondents’
First Affirmative Defense arise to the ‘compelling
circumstances’
required under
Hickey.
III.
MOTION TO STRIKE SECOND AFFIRMATIVE
DEFENSE
6.
Edward Pruim and Robert Pruim’s Second Affirmative
Defenses each provide:
This complaint
is barred because Complainant has failed
to state a claim for personal liability under the Act
by failing to allege sufficient facts establishing that
Respondent had personal involvement or active
participation in the acts resulting in liability.
Complainant has merely set forth allegations of
Respondent’s involvement and participation in the.
management of the corporation, which are insufficient
to establish personal liability under the Act.
7.
The Respondents’
Second Affirmative Defense attacks the
legal sufficiency of the complaint,
and is nothing more than a
restatement of its Motion to Dismiss, already denied by the
Board.
Raising the same pleading issue as an ‘affirmative
defense’
is improper,
and legally insufficient.
8.
Respondents’
S~ptember10,
2004 Motion to Dismiss
excerpts
attached as
‘Exhibit A’
provides,
in pertinent part:
4
3.B. Complainant has Failed to Allege Facts
Establishing that the Respondents had Personal
Involvement or Active Participation in the Acts
Resulting in Liability.
9.
Through Motion to Dismiss, Response,
and Reply,
the
parties fully briefed this same issue.
On November
4,
2004,
the
Board considered and rejected the same argument now propounded as
an ‘affirmative defense’
.
In its decision,
the Board held,
in
part:
“The Board need look no further than the first
17
paragraphs of count
I,
which are incorporated into the
remaining counts,
to establish that the complaint
is
sufficient.
.
.the Board finds that the facts pled in the
complaint are sufficient to establish
personal
liability”
PCB 04-207, November
4,
2004,
slip op.
at
7.
10.
The
Respondents’
Second
‘affirmative
defense’
is
improper for several reasons.
Complainant first directs the
Board to Section 2-615 of the Illinois Code of Civil Procedure,
735 ILCS 5/2-615, which provides,
in pertinent part:
(a)
All objections to pleadings shall be raised by
motion.
*
*
*
11.
Respondents
did
raise their objections by motion, and
were denied.
Repeating these objections to the Complaint through
pleading the same argument as an ‘affirmative defense’
is
improper.
Moreover,
no facts are plead-merely legal conclusions
which ignore the Board’s prior ruling.
12.
Also,
the Second ‘affirmative defense’,
cannot defend.
5
If the allegations in the complaint are accepted as true,
and by
the Board’s ruling sufficient to state
a cause of action against
the Respondents,
then the statement that
‘the complaint.
.
.fails
to allege sufficient facts....’
cannot defeat liability.
It
merely attempts to cloud a decided legal
issue.
For the reasons stated herein,
Respondents’
Second
Affirmative Defense is legally insufficient,
and should be
stricken.
WHEREFORE,
Complainant,
PEOPLE
OF
THE STATE OF ILLINOIS,
respectfully requests that the Board issue an Order:
1.
Striking Respondents’, EDWARD PRUIM and ROBERT PRUM’ S
Second Affirmative Defenses; and
2.
Granting such other relief as the Board deems
appropriate and just.
BY:
RESPECTFULLY SUBMITTED,
LISA MADIGAN, Attorney General
of
the State of Illinois
CHRISTOPI4)R GRANT
Environmental Bureau
Assistant Attorney General
188 West Randolph Street,
~
Floor
Chicago,
IL
60601
(312)
814-5388
6
~CE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
SEP
10
2004
PEOPLE OF
TUE
STATE OF
ILLINOIS,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
)
)
vs.
)
PCB No. 04-207
)
(Enforcement)
EDWARD PRUIvI,
an individual, and
)
ROBERT PRT.JIM, an individual,
)
)
Respondents.
)
RESPONDENTS
EDWARD PRTJEM
AND ROBERT PRUIM’S
MEMORANDUM
OF
LAW IN SUPPORT OF RESPONDENTS’ MOTION TO DISMISS COMPLAINT
Respondents,
EDWARD
PRUIM
and
ROBERT
PRUIIVI,
(referred
to
collectively
as
“Respondents” or “the Pruims”, or individually as
“Edward Pruim” or ‘~Robert
Pruim”) by
and
through their attorneys, LAROSE & BOSCO, LTD., and in oppositionto the People ofthe State of
illinois’
(“People” or “Complainant”) Complaint, respond as follows:
I.
Introduction
The allegations in the present complaint have beenthe subject ofseven (7) years ofintense
litigation in an almost identical matter before the Illinois Pollution Control Board (“the Board”)
against Community Landfill Company (“CLC”), captioned-PCB 97-193
(“the 1997
case”).
The
ongoing
litigation in
the
1997
case has. included:
a
complaint
filed in
1
997,
a First
Amended
Complaint filed in -1-998, a Second Amended Complaintliled in 1999,
and substantive rulings on
liability both-for and against••~~CLC
in both 2001
and 2Q02.
THIS1~ILINGIS SU-BMITTED ON~RECYCLEDPAPER
1
the1997 case. The effectofconsolidating these
two
c~aseswould have the
same practical effect of
amending the complaint.
As the Board stated in its March
18,
2004
order order, “the new
respondents would find a case where (CLC) has already been found in
violation on
a number of
counts.
Since the Board has already foundviolations, this places thenew respondents in a difficult
position, and the Board finds that they would-be prejudiced.”
(See Exhibit A, page 4).
The Board
also reasoned that CLC was correct in pointing out that itwould be prejudiced “because-ofthe-new
delaynecessaryto allownew respondents to fully litigatethe~
alleged
violations againstthem.”
(See
Exhibit A, page 4).
Again, nothinghas changecLin this case since March
18, 2004- and the Board
should dismiss the 2004 complaint in its entirety.
The Board has already determinedthat amending the complaint was untimely, prejndicialto
CLC, and improper given that Complainant had numerous opportunities
to previously
amend
the
complaint.
(See Exhibit A, page4).
The Board shouldnot allowthe Complainantto reachthe same
destination simplyby takinganotherroute.
The Board should see through this procedural
ruse
and
grant Respondents’
Motion to Dismiss and
dismiss the 2004 complaint in its-entirety.
B.
Complainant
has Failed to
AllegeFacts Establishing thattlieResponidents had-Personal
Involvement or Active Participation in the Acts Resulting in Liability.
The Complainant has failedlo meet itsburden under
fllinoiswhichTeqthrewit4o
allegefacts
establishing that
the Respondents
had
personal involvement
or active participation
in the acts
resulting in liability, notjust personal involvement oractiveparticipationin the
management
ofthe
corporation.
People v. Tang, 346 Ill.App~3d
277, 289,
805 N.E.2d 243,
253~54(lst
Dist. 2004).
It
is insufficientto merely make allegationsthat an officer“caused orallowed” certainactions to
occur
in
violation of the
Act or that the
officers
were
acting
in their
corporate
capacities.
U.S.
v.
9
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
by
LISA
MADIGAN,
Attorney
General of the State of Illinois,
Complainant,
-vs-
)
PCB No. 04-207
(Enforcement)
EDWARD PRUIM,
an individual,
and
ROBERT PRUIM,
an individual,
Respondents.
CERTIFICATE OF SERVICE
I,
CHRISTOPHER GRANT,
an attorney, do certify that
I caused
to be served this 4th day of February,
2005,
Complainant’s Reply
and Motion to Strike Affirmative Defenses upon the persons listed
below by placing same in an envelope bearing sufficient postage
with the United States Postal Service located at 100 W. Randolph,
Chicago.
/
Q ~
~
CHRISTOPHER GRANT
SERVICE LIST:
Mr. Mark Larose
Ms. Clarissa Grayson
Larose
& Bosco,
Ltd.
200 N. La Salle Street,
#2810
Chicago,
IL 60601
Mr. Bradley
P.
Halloran
Hearing Officer
Illinois Pollution Control Board
100 W.
Randolph
Chicago, Illinois 60601
via
hand delivery
