ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

)

)

Complainant,

)

VS.

)

)

FIRST COUNTRY HOMES, LLC, an Illinois

)

Limited liability company,

)

)

Respondents

)

PCB 06-173

(Enforcement

-

Water)

NOTICE OF FILING

TO: Thomas G.

Gardiner

Gardiner Koch

&

Weisberg

53 West Jackson Blvd.

Suite 959

Chicago, Illinois 60604-3849

Mr. Bradley P.

Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 West Randolph

Chicago, Illinois 60601

PLEASE TAKE NOTICE that I have today electronically filed with the Office of the

Clerk of the Pollution Control Board a Motion to Dismiss Affirmative Defenses, a copy of which

is attached and herewith served upon you.

By:

Dated:

Matthew Marinelli

&>

2

7,)

ZP/b

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN

Attorney General of the State of Illinois

By: Assistant Attorney General Matthew Marinelli

Environmental Bureau

188

'west

Randolph St.,

2oth

Floor

Chicago, IL 60601

3

12-814-0608

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

)

)

Complainant,

)

)

VS.

)

PCB No. 06-173

1

(Enforcement

-

Water)

FIRST COUNTRY HOMES, L.L.C., an Illinois

)

corporation,

1

1

Respondent.

1

MOTION TO DISMISS AFFIRMATIVE DEFENSES

Now comes Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN, Attorney General of the State of Illinois, pursuant to Section 101.506 of the Illinois

Pollution Control Board's procedural Regulations and Section 2-61

5 of the Illinois Code of Civil

Procedure, 735 ILCS 2-6 15

(2004), for an order dismissing, with prejudice, Respondent FIRST

COUNTRY HOMES, L.L.C.

's Affirmative Defenses to the Complaint.

INTRODUCTION

On May 16, 2006, Complainant, People of the State of Illinois ("State"), filed a two-

count complaint against Respondent, First Country Homes, L.L.C. ("First Country"). The

complaint alleges that First Country committed numerous violations of the Illinois

Environmental Protection Act ("Act"), 415 ILCS

511

et seq.

(2004),

and regulations thereunder.

Count I is titled

Failure to Obtain a Construction

Pemit

and Count

I1

Failure to Obtain

an NPDES Permit.

On

July 13,2006, First Country filed its Answer and Affirmative Defenses.

STANDARD

Under Illinois case law, the test for whether a defense is affirmative and must be pled by

the defendant is whether the defense gives color to the opposing party's claim and then asserts

new matter by which the apparent right is defeated.

Ferris Elevator Company, Inc. v.

Neffco,

Inc.,

285

Ill. App. 3d 350, 354, 674

N.E.2d 449,452 (3rd Dist. 1996);

Condon

v.

~merkan

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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Telephone and Telegraph

Companv. Inc., 210

Ill. App. 3d 701,

709,.569

N.E.2d 518, 523

(2nd

Dist. 1991).

Worner Agency,

Inc. v. Doyle, 121

Ill. App. 3d 219, 222,459

N.E.2d 633, 635-636

(4th Dist. 1984). In other words, an affirmative defense confesses or admits the cause of action

alleged by the plaintiff, then seeks to avoid it by asserting new matter not contained in the

complaint and answer. Where the defect complained about appears from the allegations of the

complaint, it is not an affirmative defense and would be properly raised by a motion to dismiss.

Corbett

v.

Devon

Bank,

12

Ill. App. 3d. 559, 569-570,299

N.E.2d 521, 527 (1st Dist. 1973).

Thus, the issue raised by an affirmative defense must be one outside of the four comers

of the complaint. Further, the facts constituting any affirmative defense must be plainly set forth

in the answer. Section 2-61

3(d) of the Illinois Code of Civil Procedure, 735 ILCS

512-613(d)

(2004). Finally, the facts establishing an affirmative defense must be pled with the same degree

of specificity required by a plaintiff to kstablish a cause of action. International Insurance Co. v.

Sargent

&

Lundy, 242

Ill. App. 3d 614,609

N.E.2d 842, 853 (1st Dist. 1993).

I.

First Country's First Affirmative Defense of "Failure to State a Claim" is an

invalid and improperly pled affirmative defense and should be stricken.

First Country's first purported affirmative defense is legally insufficient and should be

dismissed as a matter of law. First Country's affirmative defense that the Complaint "fails to

sufficiently set forth all of the required information, including, specifically, the events, nature,

extent and strength of discharges or emissions and consequences alleged to constitute violations

of the Act or Regulations" does not meet the fundamental requirement that an affirmative

defense give color to a plaintiffs claim and assert new matter that defeats it. In fact, the

purported affirmative defense does not assert any new matter, much less new matter that might

defeat the State's claim. Furthermore, First Country fails to plainly set forth any facts in support

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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of its affirmative defense as to how the complaint fails to state a cause of action. Thus, the

defense is legally and factually insufficient.

Further, if the pleading does not admit the apparent right to the claim and instead merely

attacks the sufficiency of the claim, it is not a valid affirmative defense. See Worner Agency,

Inc. v. Doyle, 12

1

Ill. App. 3d 2

19,222-23 (4th Dist. 1984). By stating that the State's complaint

fails to state a claim for which relief can be granted, First Country fails to admit the apparent

right to the claim. First Country cannot establish in the same defense that there is both an

apparent right to a claim and no claim for which relief can be granted. If First Country wishes to

attack the sufficiency of the claim, it should do so properly, through a motion to strike or

dismiss, and not by answering the complaint and asserting an affirmative defense.

Regardless of First Country's improper attack on the sufficiency of the complaint, the

complaint does state a cause of action. The pleadings allege sufficient facts, which if proven,

would entitle the plaintiff to recover and, thus, the complaint states a cause of action. See

e.g.

Knox College v.

Celotex Corp., 88

111.2d 407 (1

98

1);

Cahill v.

Eastertz

Benefit Systems,

Itzc., 236

Ill. App. 3d 517 (1st Dist. 1992). The complaint fully alleges the dates, locations, events, and

nature of First Country's failure to obtain both a sewer construction permit and a NPDES permit

prior to constructing a sewer system.

Therefore, First Country's first purported affirmative defense asserting the failure to state

a claim is without merit because it fails to plainly set forth any facts, fails to give color to the

State's claim and fails to assert a new matter by which the apparent right is defeated. First

Country's first affirmative defense is legally insufficient and should be dismissed, with

prejudice, as a matter of law.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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11.

First Country's Second Affirmative Defense, which Responds to the Penalty

Factors Under Section

33(c) of the Act, is Not a Defense to Liability

First Country's second purported affirmative defense is a direct response to the penalty

factors set forth under Section 33 of the Act (415 ILCS 5/33). Section 33 of the Act sets forth

both restrictions on what may constitute a defense to violations of the Act and the factors that the

Illinois Pollution Control Board (''Board

") shall consider in determining whether a civil penalty

is appropriate in a particular case:

(a)

. . .

It shall not be a defense to findings of violations of the provisions of

this Act, any

rule or regulation adopted under this Act, any permit or term

or condition of a permit, or any Board order, or a bar to the assessment of

civil penalties that the person has come into compliance subsequent to the

violation

. . .

* * *

(c)

In making its orders and determinations, the Board shall take into

consideration all the facts and circumstances bearing upon the

reasonableness of the emissions, discharges or deposits involved

including, but not limited to:

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of

the people;

the social and economic value of the pollution source;

the suitability or unsuitability of the pollution source to the area in

which it is located, including the question of priority of location in

the area involved;

the technical practicability and economic reasonableness of

reducing or eliminating the emissions, discharges or deposits

resulting from such pollution source; and

any subsequent compliance.

First Country's use of the Section

33(c) factors as an affirmative defense is entirely

inappropriate. Section

33(c) sets forth factors which, if proven, could only affect the imposition

of a monetary penalty. These aggravating and mitigating factors do not address whether or not

the alleged violations of the Act have occurred. "Subsequent compliance," which is listed as a

factor that might mitigate any penalty in Section

33(c)(v), is explicitly rejected as a defense to a

4

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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violation by Section

33(a). Section

33(a) can only be reconciled with Section

33(c) if the

Section

33(c) factors do not constitute affirmative defenses. See People v. Wilson, 405

Ill. 122,

90

N.E.2d 224,227

(Ill. 1950) ("the entire section and act must be read together and so construed

as to make it harmonious and consistent in all its parts.").

It is a well recognized rule that a "defense which speaks to the imposition of a penalty,

rather than the underlying cause of action, is not an 'affirmative defense' to that cause

of action"

and should be stricken. People v. Community Landfill Co., Inc., PCB No. 97-193, 1998

Westlaw 473246, at

*4 (Aug. 6, 1998); see also People v. Geon Co.. Inc., PCB No. 97-62, 1997

Westlaw 621493; at

*3 (Oct. 2, 1997); People v. Douglas Furniture of California, Inc., PCB No.

97-133, 1997

Westlaw 235230, at

*5 (May

1, 1997); People v. Midwest Grain Prods. of Illinois,

Inc.,

PCB No. 97-179, 1997

Westlaw 530544, at

*4 (Aug. 21, 1997). "The appropriate penalty

to be imposed for a violation of the Act is a separate inquiry from whether a violation of the Act

has occurred, and

nlitigation

issues

are

onlj~

considered

once a

violatio~l

of the Act has been

found."

Midwest Grain Prods., 1997

Westlaw 530544, at

*4 (emphasis added).

This rule is well recognized by the Board, the agency charged with the primary

responsibility for interpreting the Act.

See

41

5 ILCS

5/5(b) (authorizing the Board to

"determine, define and implement the environmental control standards applicable in the State.").

Administrative interpretations of a statute made by an agency charged with administering that

statute are entitled to considerable deference unless clearly erroneous, arbitrary or unreasonable.

Winnetkans Interested in Protecting the

Env't. v. Illinois Pollution Control Bd., 55

Ill.App.3d

475,479-80, 370

N.E.2d 1176, 1179

(1'' Dist. 1977); see also Church v. State, 164

111.2d 153,

162, 646

N.E.2d 572, 577

(Ill. 1995) (Illinois Supreme Court held "A court will not substitute its

own construction of a statutory provision for a reasonable interpretation by the agency charged

5

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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with the statute's administration"). Moreover, this rule of 'deference to administrative

interpretation applies with particular force where there is a long-standing rule that has been

consistently followed.

See

Mov

v. State

Dep't. of Registration and Educ., 85

Ill.App.3d 27, 31,

406

N.E.2d 191, 195

(lSt

Dist. 1980).

,

This rule is also supported by at least one court decision.

h

United States v.

Vitasafe

Corporation, the Defendants first denied liability, then proceeded to plead six affirmative

defenses which included penalty mitigation arguments.

See

212 F. Supp. 397, 398 (S.D.N.Y.

1962). The

Vitasafe Court held, in relevant part, as follows (emphasis added):

The way in which defendant carries on its operations, and its claimed good faith,

have

no bearing on the question of whether it has [committed a

violatioil]

. . .

Defendant may urge its lack of intent to violate

. . .

in mitigation of the penalty. It

cannot do so, however, as a defense to liability

. . .

The pleading of such evidence

as an

afirmative defense is unnecessary and improper.

Id.

The Board and at least one court have made it abundantly clear that an affirmative

defense which speaks to the imposition of a penalty rather than the underlying causes of action is

not an "affirmative defense"

to that cause of action and should be stricken. Therefore, First

Country's second purported affirmative defense, which speaks to the penalty factors under

Section

33(c) of the Act, is not an affirmative defense to the causes of action in the State's

Complaint, and should be dismissed, with prejudice.

CONCLUSION

For the foregoing reasons, Plaintiff, PEOPLE OF THE STATE OF ILLINOIS, requests

that the Affirmative Defenses of the Respondent, FIRST COUNTRY HOMES, L.L.C., be

dismissed, with prejudice.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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PEOPLE OF THE STATE OF ILLINOIS,

ex

rel. LISA

MADIGAN,

Attorney General of the State of Illinois

BY:

Assistant Attorney General

Environmental Bureau North

188 West Randolph St.,

2oth

Floor

Chicago, Illinois 60601

3

12-814-0608

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006

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CERTIFICATE OF SERVICE

I, MATTHEW MARINELLI, an Assistant Attorney General, do certify that I caused to

be mailed this

z

a

a

y

  

of July, 2006, the foregoing MOTION TO DISMISS AFFIRMATIVE

DEFENSES to the persons listed on the said NOTICE by first-class mail in a postage prepaid

envelope and depositing same with the United States Postal Service located at 188 West

Randolph Street, Chicago, Illinois, 60601.

It is hereby certified that a true copy of the foregoing Notice was electronically filed with

the following on July

27

,2006:

Ms Dorothy

Gum

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph, Suite 1

1-500

Chicago, Illinois 60601

MATTHEW MARINELLI

w

Assistant Attorney General

Environmental Bureau

188 West Randolph St.,

2oth

Floor

Chicago, Illinois 60601

3

12-8

14-0608

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 27, 2006