BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
1
1
Complainant,
)
)
-
vs
-
PCB No. 06-177
)
(Enforcement
-
Used Tires)
SHERIDAN SAND
&
GRAVEL CO.,
1
an Illinois corporation,
)
)
Respondent.
1
NOTICE OF FILING
TO:
Kenneth Anspach
Bradley P. Halloran, Esq.
Eight South Michigan Avenue
Hearing Officer
Suite 3400
Illinois Pollution Control Board
Chicago, Illinois 60603
James R. Thompson Center, Suite 1 1-500
100
W. Randolph Street
Chicago, Illinois 60601
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the
.
Illinois Pollution Control Board by electronic filing the attached RESPONSE IN OPPOSITION
TO RESPONDENT'S MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER AND
AFFIRMATIVE DEFENSES, a copy of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State
ofjy
,/
BY:
yzfq.
/v-
Environmental ~uieau
188 W. Randolph St., 2oth Floor
Chicago, Illinois 60601
(312) 814-5361
DATE: December
1 1,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 11, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
1
)
v.
)
PCB No. 06-177
)
(Enforcement
-
Used Tires)
SHERIDAN SAND
&
GRAVEL CO.,
an Illinois corporation,
1
1
1
Respondent.
1
COMPLAINANT'S RESPONSE IN OPPOSITION TO RESPONDENT'S MOTION FOR
LEAVE TO FILE FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES
Now comes Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and in response to Respondent
SHERIDAN SAND
&
GRAVEL CO.'s Motion for Leave to File First Amended Answer and
Affirmative Defenses pursuant to Section
101.100(b) of the Illinois Pollution Control Board's
Procedural Regulations, 35
Ill. Adm. Code 101.100(b), and Section 2-61 6(a) of the Illinois Code
of Civil Procedure, 735 ILCS
512-616(a) (2004), states as follows:
INTRODUCTION
On October 13,2006, Respondent Sheridan Sand and Gravel Co. ("Sheridan" or
"Respondent") filed its Answer and Affirmative Defenses to the
complaint. On November 14,
2006, Complainant filed its Motion to Dismiss Affirmative Defenses. On November 27,2006,
Respondent filed a Motion for Leave to File First Amended Answer and Affirmative Defenses.
Complainant strenuously objects to Respondent's motion to file amendments to its answer and
affirmative defenses on several grounds.
ARGUMENT
As a preliminary matter, instead of responding or objecting to Complainant's November
.
14, 2006, Motion to Dismiss Affirmative Defenses, Respondent has filed a motion essentially
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 11, 2006
seeking leave to amend its answer and specific affirmative defenses. Indeed, in its First
Amended Answer and Affirmative Defenses, Respondent has deleted two of its five original
affirmative defenses alleged in its Answer. Additionally, Respondent's motion
p~irports to raise
three
(3) new affirmative defenses, but actually raises no new allegations and only replicates the
First, Second and Fourth affirmative defenses Respondent originally filed. Consequently, where
Respondent itself acknowledges its own invalid affirmative defenses and has not filed an
objection to
Complainant's pending motion to dismiss affirmative defenses, the Illinois Pollution
Control Board ("Board") should treat Complainant's motion as unopposed and dismiss
Respondent's five (5) affirmative defenses proffered in its original Answer.
Moreover, as a result of Respondent filing its motion on the day its response to
Complainant's Motion to Dismiss Affirmative Defenses was due, Respondent has waived
objection to the Board's granting of Complainant's motion under the Board regulations.
Pursuant to Section 101
.500 of the Board regulations, "[ilf no response is filed, the party will be
deemed to have waived objection to the granting of the motion." 35
Ill. Adm. Code 101.500(d).
I
Thus, Respondent's failure to file a response should be deemed a consent to Complainant's
Motion to Dismiss Affirmative Defenses, and the Board should deny Respondent's request to
amend its Answer and affirmative defenses.
I
Next, Respondent has speciously granted itself permission to amend its Answer and
affirmative defenses while offering no argument as to why it should be permitted to amend its
affirmative defenses or to substitute a First Amended Answer for its earlier admission to the
allegations in the Complaint. The motion itself consists of a scant one paragraph citing the
Board's discretionary authority and an incorrect conclusion by Respondent that "filing an
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 11, 2006
amended answer and affirmative defenses
must
be allowed".
772,3
Motion. Respondent is
mistaken to assert that amendments to pleadings are an absolute right. Rather, under the rules,
amendments to pleadings are discretionary,
i.e., "amendments may be allowed on just and
reasonable terms," and not as a matter of right as Respondent incorrectly claims.
735 ILCS
512-
6 16(a).
Moreover, in the instant motion, Respondent has not articulated any specific new
information or position that would support its need to file a First Amended Answer and
Affirmative Defenses. Thus, in addition to the reasons provided above, Respondent's request to
amend its answer and affirmative defenses should be denied as Respondent has proffered no
reason as to why the Board should allow it.
Lastly, where Complainant's motion to dismiss Respondent's affirmative defenses is
currently pending before the Board, Respondent's filing of its motion is procedurally premature.
Further
proceedings on amending Respondent's affirmative defenses are premature until
Complainant's motion to dismiss affirmative defenses is decided by the Board. Respondent's
motion requesting to amend its answer and affirmative defenses asks this Board to take an action
that it cannot do without first ruling on Complainant's motion currently pending before it. If the
Board grants Complainant's motion and dismisses the original affirmative defenses, with
prejudice, then Respondent would not be able to
refile them.
Respondent seeks to preempt an adverse ruling by the Board on Complainant's motion,
and effectively grant itself leave to file amended defenses, which it may be precluded
from
bringing if Complainant prevails on its motion. Procedurally, this is inappropriate and improper.
Moreover, it could prejudice Complainant, who is entitled to a ruling on its motion. As such,
Respondent's motion to amend its affirmative defenses and answer should be denied.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 11, 2006
CONCLUSION
WHEREFORE, for the reasons stated, the Complainant, PEOPLE OF THE STATE OF
ILLINOIS, requests that the Respondent's requests to amend its Answer and affirmative defenses be
denied.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN, Attorney General
I
Environmkntal Bureau
188 W. Randolph St.,
2oth Flr.
Chicago, Illinois 60601
(312) 814-5361
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 11, 2006
CERTIFICATE OF SERVICE
I, VANESSA A. VAIL, an Assistant Attorney General, do certify that I caused to be
mailed this
1 1 th day of December 2006, a true and correct copy of the attached RESPONSE IN
OPPOSITION TO RESPONDENT'S MOTION FOR LEAVE TO FILE FIRST AMENDED
ANSWER
AND AFFIRMATIVE DEFENSES and Notice of Filing by certified mail with return
receipt requested to the persons listed on the said Notice of Filing, and depositing same with the
United States Postal Service located at 188 West Randolph Street, Chicago, Illinois, 60601.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 11, 2006