BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
1
1
Complaint,
1
)
VS.
1
1
PCB 06-173
1
(Enforcement-Water)
FIRST COUNTRY HOMES, LLC, an
)
Illinois Limited Liability Company,
)
1
Respondent.
1
RESPONSE TO PETITIONER'S MOTION TO DISMISS RESPONDENT'S
AFFIRMATIVE DEFENSES
Respondent, FIRST COUNTRY HOMES, LLC,
an
Illinois Limited Liability
Company ("First Country"), by Gardiner Koch
$:
Weisberg,
its attorneys,
for
its response
to Petitioner's Motion
to
Strike Respondent's Affirmative Defenses, hereby
states
as
follows:
STATEMENT OF
THE
LAW
Both Affmnative Defenses asserted by Respondent conform to
the
requirements
of the Illinois
Code of
Civil
Procedure. IIIinois law requires that
"[tlhe
facts constituting
any affirmative defense
. . .
must
be
plainly
set
forth in the answer or reply." 735 ILCS
5/2-61
3(d).
The
clear
purpose of
this
requirement is to facilitate the
decision
of cases on
their
merits, and
to eliminate the
harsh consequences
which resulted from
unfair surprise
at
trial prior
to
the
enactment
of modem civil procedure rules.
Mmon
Ins.
Co.
v.
Thorson,
266
T11.App.3d 1050, 1052 (3d Dist. 1992).
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. Raprager
v.
AIlstate Ins. Co., 183
111.
App.
3d
847,854
(2d Dist.
1989).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006
ARGUMENT
Respondent's Affirmative Defenses Meet the Requirements of
735
ILCS
512-613.
Respondent's Affirmative Defenses are pled plainly enough so that unfair surprise
will not result from the defenses at hearing.
The first Affirmative Defense-that
Petitioner fails to state
a
cause of
action-is
goes
to
the specific
fac
is
of this matter in thai it fails
to state
the "events, nature, extent
and strength of discharge or emissions and consequences alleged to constitute violations
of the Act or regulations."
The second
Affirmative
Defense asserts that Respondent was prevented from
compliance with the EPA due to various factors outside of Respondent's control, and
what steps were
taken
to
effect
compliance with the Act. Again, these arguments go to
the facts of the matter which will be specifically realized
at hearing.
In conclusion, the Affirmative Defenses effectively put Petitioner on notice of the
defenses which Respondent intends to argue at hearing.
WHEREFORE, for
the
foregoing reasons, Respondent, FIRST COUNTRY
HOMES, LLC, respectfully requests that this Board enter
an
Order denying Petitioner's
Motion to Dismiss Respondent's Affirmative Defenses, and for any other relief that this
Board deems is just and
proper,
Respectfully Submitted,
FIRST COUNTRY HOMES, LLC
BY:
~7.
One of Its
Attorneys
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006
Thomas
G.
Gardiner
Matthew
A. Sidor
GARDINER KOCH
&
53
W. Jackson Blvd.,
S
Chicago, IL
60604
3 12-362-0000