'BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
1
1
-
vs
-
1
PCB No. 06-177
)
(Enforcement
-
Used Tires)
SHERlDAN SAND
&
GRAVEL CO.,
an Illinois corporation,
)
)
1
Respondent.
)
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 11-500
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 MOTION TO STRIKE
FIRST
AMENDED AFFIRMATIVE DEFENSES, a copy of whlch is attached and hereby served upon
you.
Respecthlly submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
100
W. Randolph Street, 1 lth lo or
Chicago, Illinois 60601
(312) 814-5361
DATE: March 14,2007
Electronic Filing, Received, Clerk's Office, March 13, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
)
)
v.
)
PCB No. 06-177
)
(Enforcement
-
Used Tires)
SHERIDAN SAND
&
GRAVEL CO.,
)
an Illinois corporation,
1
1
Respondent.
1
MOTION TO STRIKE FIRST AMENDED 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 2-615 of the Illinois Code of Civil
Procedure, 735 ILCS
512-615 (2004), for an order striking Respondent SHERIDAN SAND
&
GRAVEL CO.'s First Amended Affirmative Defenses to the Complaint, and states as follows:
I.
INTRODUCTION
On May 22,2006, Complainant, People of the State of Illinois ("State" or "People"), filed
a five-count Complaint against
Sheridan Sand
&
Gravel Co. ("Sheridan" or "Respondent")
alleging violations of the Illinois Environmental Protection Act, 415 ILCS
511
et
seq. ("Act") and
the Illinois Pollution Control Board's ("Board") regulations thereunder.
On September 7,2006, the Board denied
Sheridan's Motion to Dismiss Complaint. On
October 13, 2006,
Sheridan filed its Answer and Affirmative Defenses to the Complaint
("Answer"). On November 13,2006, the State filed its Motion to Strike Affirmative Defenses.
On November 27,2006,
Sheridan filed its First Amended Answer and Affirmative Defenses.
11.
LEGAL STANDARD
Under Illinois case law, the test for whether a defense is affirmative and must be pled by
Electronic Filing, Received, Clerk's Office, March 13, 2007
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.
Condon v. American Telephone and
Telemaph Companv, Inc., 210 Ill.App.3d 701, 709, 569 N.E.2d 518, 523 (2nd Dist. 1991);
Vroegh v. J
&
M Forklift, 165 111.2d 523,651 N.E.2d 121, 126 (1995); People v. Community
Landfill Co., PCB 97-193 (August 6, 1998).
In other words, an affirmative defense confesses or
admits the allegations in the complaint, and then seeks to defeat a plaintiffs right to recover 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). An affirmative
defense must do more than offer evidence to refute properly pleaded facts in a complaint.
Pryweller v. Cohen, 282 Ill.App.3d 89, 668 N.E.2d 1144, 1149 (1" Dist. 1996), appeal denied,
169
111.2d 588 (1996); Heller Equity Capital Corn. v. Clem Environmental Corn., 272 Ill. App.
3d 173, 178, 596
N.E.2d 1275, 1280 (lSt Dist. 1993); People v. Wood River Refining Companv,
PCB 99-120 at 6 (August 8,2002); Farmer's State Bank v. Phillips Petroleum Co., PCB 97-100
(January 23, 1997) (affirmative defense does not attack truth of claim, but the right to bring a
claim). A simple refutation of allegations in the complaint fails to establish an affirmative
defense.
Id.
Thus, the issue raised by an affirmative defense must be one outside of the four corners of
the complaint. The Board rule regarding affirmative defenses provides, in pertinent part, that:
Any facts constituting an affirmative defense must be plainly set forth before hearing in
the answer or in a supplemental answer, unless the affirmative defense could not have
been known before the hearing.
2
Electronic Filing, Received, Clerk's Office, March 13, 2007
35 Ill. Adrn. Code 103.204(d). In addition, Section 2-6 13(d) of the Illinois Code of Civil
Procedure, 735 ILCS
512-613(d) (2004), is instructive, providing that "[tlhe facts constituting any
affirmative defense.. .must be plainly set forth in the answer or reply.'' The facts establishing an
affirmative defense must be pled with the same degree of specificity required by a plaintiff to
establish a cause of action. International Insurance Co. v. Sarnent
&
Lundv, 242 Ill.App.3d 614,
609
N.E.2d 842, 853 (1st Dist. 1993).
Dismissal for failure to state a cause of action is appropriate only where it clearly appears
that no set of facts can be proven under the pleadings that will entitle the pleader to recovery.
Douglas Theater Corporation v. Chicago Title
&
Trust Company, 288 Ill.App.3d 880, 681
N.E.2d 564, 566 (lSt Dist. 1997). As with a Section 2-615 motion, a dismissal based on certain
defects or defenses is proper if no set of facts may be proven by which the pleader can recover.
Griffin v. Fluellen, 283
Ill.App.3d 1078,670 N.E.2d 845, 849 (lSt Dist. 1996).
A pleading must be dismissed for failure to state a cause of action if the facts alleged,
when taken as true, do not set forth a legally recognized claim upon which relief can be granted.
Kirchner v. Greene, 294 Ill.App.3d 672,691 N.E.2d 107, 112 (1'' Dist. 1998).
111.
RESPONDENT'S AFFIRMATIVE DEFENSES ARE LEGALLY INSUFFICIENT
A.
Respondent's First Affirmative Defense.
Respondent's First Affirmative Defense to all five counts of the Complaint claims that
because the Illinois Environmental Protection Agency ("Illinois
EPA" or "Agency") failed to comply
with Section
55.5(c) of the Act, 415 ILCS 5/55.5(c) (2004), the Agency thereby failed to comply
with the requirements of Sections 3
1 (a) and (b) of the Act, 41 5 ILCS 513 1 (a) and (b) (2004).
This affirmative defense has no legal merit because Section
55.5(c) ofthe Act does not apply
in the present case.
.'As part of its affirmative defense, Respondent claims that "Illinois EPA never
Electronic Filing, Received, Clerk's Office, March 13, 2007
73
Affirmative Defense. Respondent's argument raises a completely irrelevant issue in response to
the State's Complaint because none of the violations that Section
55.5(c) specifically applies to are
alleged in the Complaint.
Section
55.5(c) provides, in pertinent part, as follows:
Notwithstanding the provisions of subsection (b) of this Section,
prior to taking
action
pzlrszrarlt to Title VIIIfor violation of subsectiori (a),
(b)
or (c) of Section 55
of this Act,
the Agency or unit of local government shall issue and serve upon the
person complained against a written warning notice informing such person that
the Agency or unit of local government intends to take such action.
415
ILCS 5/55.5(c) (2004) (emphasis provided). Thus, only before the Illinois EPA may refer
violations of
Section 55(a),
(b)
or (c) of the Act
to the Attorney General for enforcement, is the
Agency required to comply
withthe notice provision of Section 55.5(c). Otherwise, for any other
I
alleged violation of Title XIV of the Act, the Illinois EPA is required to comply with Title VIII,
i.e., Section 3 1 of the Act, as the Agency has done.
In the Complaint, and as confirmed by the Board in its Order accepting the Complaint for
hearing, "the People allege that
Sheridan Sand
&
Gravel Company violated Section 21(k);
55(d)(l), (e), and (g); and 55.6(b) of the Act (415 LCS 5/21(k); 55(d)(l), (e), and (g); and
55.6(b) (2004)) and 35 111. Adm. Code 848.202(b)(4) and (b)(5), 848.305, and 848.601 (a)."
People of the State of Illinois v.
Sheridan Sand
&
Gravel Co., PCB 06- 177 (June 1,2006) at 1
;
see also
Complaint. Ergo, the Complaint contains no alleged violations of Section 55(a), (b) or
(c) of the Act whatsoever. Similarly, Respondent points to no allegation in the Complaint in this
matter which seeks to impose liability for
a violation of 55(a), (b) or (c) of the Act.
Respondent's conclusion that this matter has been improperly brought before the Board
because the Illinois EPA has failed to fulfill the requirements of Sections
3 1 (a) and (b) pursuant
Electronic Filing, Received, Clerk's Office, March 13, 2007
to Section 3 l(c)(l) of the Act, 41 5 ILCS 513 l(c)(l) (2004) is unavailable as an affirmative
defense. As already discussed above, Section
55.5(c) of the Act does not apply in this matter.
Additionally, where Section 3 1 applies to the Agency but not the Attorney General,
Respondent's argument that the Attorney General is prohibited from filing a Complaint against
Sheridan because of ccIllinois EPA's failure to hlfill the requirements of Sections 3 1(a) and 3 1(b)
of the Act, 415 ILCS 5131(a) and (b) (2004), as well as Section 55.5(c) of the Act, 415 ILCS
5155.5(c) (2004)" is without merit. 719 Affirmative Defense. Section 3 1 does not prevent the
Attorney General from maintaining an action on her own behalf, and she may do so on her own
initiative, without a request by the Illinois EPA. Thus, Respondent's argument that compliance
with Section
55.5(c) of the Act, 415 ILCS 5/55.5(c) (2004) is a jurisdictional condition precedent
to the State bringing an enforcement action is erroneous and must be stricken.
Section
42(e) of the Act grants the Attorney General independent authority to bring an
action alleging violations of the Act on her own motion or at the request of the Illinois EPA.
See
415 ILCS 5/42(e) (2004). Aieview of the State's complaint reveals that this action was brought
by the Attorney General
on her own motion,
as well as at the request of the Illinois EPA.
See,
7
1
Complaint. In each Count of the Complaint filed herein, the allegations are that "this Complaint
is brought on behalf of the People of the State of Illinois,
ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois, on her own motion and at the request of the Illinois
Environmental Protection Agency
("111inois EPA), against Sheridan."
a.
The State made the
decision to style her pleadings in the fashion indicated to identify a filing both by the Attorney
General on her own motion
at the request of the Agency.
As clearly demonstrated above, Respondent's argument does not address the State's
underlying cause of action, rather it argues the notification procedure pertaining to violations of
Electronic Filing, Received, Clerk's Office, March 13, 2007
Section 55(a), (b) and (c) of the Act, none of which have been alleged in the State's Complaint.
Indeed, where no such allegations of Section
55(a), (b) and (c) of the Act are contained in the
Complaint, Illinois EPA is not required to comply with Section
55.5(c) of the Act, and
Respondent's First Affirmative Defense should be stricken. Respondent does not, and cannot
possibly, plead any set of facts that would support this defense to the allegations in the
Complaint. Therefore, the defense must be stricken with prejudice.
B.
Respondent's Second Affirmative Defense.
Respondent's second affirmative defense alleges that because Sheridan took certain
actions to address violations at the Site, the State's Complaint is barred
by reason of Section
55.5(c) of the Act. 718 Affirmative Defense. Firstly, for reasons already discussed above in
Section A of this motion, Respondent's argument is without merit since Section
55.5(c) of the
Act does not apply in this matter. Section
55.5(c) applies only to "violation of subsection (a), (b)
or (c) of Section 55 of this Act," and no such violations have been alleged in the Complaint. 415
ILCS 5/55:5(c) (2004). The State realleges and incorporates by reference herein its argument to
Respondent's first affirmative defense as its argument to this second affirmative defense. Thus,
Respondent's argument that "completion of corrective action under Section
55.5(c) of the Act"
precludes the Agency or the Attorney General from proceeding with enforcement action is
irrelevant.
118
Affirmative Defense. Again, where Section 55.5(c) is inapplicable in this matter,
subsequent compliance with this provision of the Act is meaningless, and this defense should be
stricken.
Secondly, subsequent compliance is not a legally recognized defense.
An affirmative
defense must raise a defense to liability to be proper.
Respondent argues as part of its second affirmative defense that "the Violation Notice
Electronic Filing, Received, Clerk's Office, March 13, 2007
contained an explanation, styled as 'Suggested Resolutions,' of two alternative actions, either one
of which Illinois EPA informed
SHERIDAN would resolve the alleged violations," and that
"Sheridan's completion of the Suggested Resolution constituted a timely completion of
corrective action under Section
55.5(c) of the Act, 41 5 ILCS 5/55.5(c), precluding any
enforcement action by the Illinois EPA under Sections 3 1
(a) and (b) of the .Act, 41 5 ILCS 3 1 (a)
and (b), or by the Attorney General under Section
3l(c)(l) of the Act, 415 ILCS 3l(c)(l)." 7712,
18 Affirmative Defense. Respondent's position is directly contradicted by Section 33(a) of the
Act.
Section
33(a) of the Act provides, in relevant part, as follows:
It shall not be a defense
to findings of violations of the
provisions of the Act or Board regulations or a bar to the
assessment of civil penalties
that the persol2 has come into
compliance
szrbseqrrent to the violation,
except where such
action is barred by any applicable State or federal statute of
limitation.
415 ILCS
5/33(a) (2004)(emphasis provided). As Section 33(a) explicitly sets forth.restrictions
on what may constitute a defense to violations of the Act, subsequent compliance is not an
affirmative defense. Therefore, Respondent's second affirmative defense is legally insufficient
and as such, should be stricken.
Alternatively, Respondent's purported defense, that
Sheridan "had completed the
requested Suggested Resolution in its entirety," may be more properly characterized as a
response to the penalty factors set forth under Section
33(c) of the Act. 714 Affirmative Defense.
Section
33(c) sets forth the factors that the Board shall consider in determining whether a civil
penalty is appropriate in a particular case:
(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:
Electronic Filing, Received, Clerk's Office, March 13, 2007
(i)
the character and degree of injury to, or interference with the
protection of the health, general welfare and physical property of
the people;
(ii)
the social and economic value of the pollution source;
(ii)
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;
(iv)
the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits
resulting from such
pollution source; and
(v)
.
any subsequent compliance.
41
5 ILCS 5/33(c) (2004)(emphasis provided). Consequently, Respondent'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.
Not only is "subsequent compliance" listed as a factor that might mitigate any penalty in Section
33(c)(v), it is explicitly rejected as a defense to a violation by Section 33(a) of the Act.
Further, the Board has consistently held that a purported defense, which speaks to the
imposition of a penalty and not the cause of action, is not an affirmative defense to that cause of
action. People of the State of Illinois v. Midwest Grain Products of Illinois,
Inc., PCB 97-179
(August 21, 1997) (citing People of the State of Illinois v. Douglas Furniture of California.
Inc.,
PCB 97-133 (May 1, 1997); see also People of the State of Illinois v. Geon Corporation, PCB
No. 97-62 (October 2, 1997). As demonstrated above, Respondent's second affirmative defense
actually attempts to raise a mitigation factor, and does not defeat the State's underlying cause of
action. Therefore, Respondent's purported defense is legally insufficient and should be stricken
with prejudice, as a matter of law.
Electronic Filing, Received, Clerk's Office, March 13, 2007
Furthermore, Respondent's purported affirmative defense is nothing more than an
argument.
See especially
771 7, 18 Affirmative Defense. Respondent attempts to argue that the
"Illinois EPA informed Sheridan" that completion of either of the Suggested Resolutions "would
resolve the alleged violations," and that
"[bly operation of law, the Violation Notice constituted a
written warning notice and the Suggested Resolution constituted a corrective action under the
provisions of Section
55.5(c) of the Act, 41 5 ILCS 5/55.5(c)." 7712, 17 Affirmative Defense.
Respondent,
however, provides no statutory authority and cites to no affirmative statement
proffered by Illinois EPA to support its purported defense. Rather, the facts are that Illinois EPA
explicitly stated in the Violation Notice that,
"[dlue to the nature and seriousness of the alleged
violations, please be advised that resolution of the violations may require the involvement of a
prosecutorial authority for purposes that may include, among others, the imposition of statutory
penalties."
See
Exhibit A.
The Second District Appellate Court has held that argumentative matters contained in
an
affirmative defense do not require a reply. In re Marriage of Sreenan, 81 Ill.App.3d 1025, 402
N.E.2d 348, 35 1 (2nd Dist. 1980); Korleski v. Needham, 77 Ill.App.2d 328,222 N.E.2d 334, 339
(2nd Dist. 1966). As clearly demonstrated above, Respondent's purported affirmative defense is
merely unsupported argument, to which the State, however, has a counterargument. Under
Sreenan and Korleski, Respondent's purported defense does not require a reply and is not a
proper affirmative defense as a matter of law. Therefore, Respondent's argument that subsequent
completion of corrective actions renders cessation of prosecutorial activities by the Agency is a
misstatement of facts and an erroneous attempt at establishing an affirmative defense, and should
be stricken.
In addition, Respondent's argument that "Sheridan's completion of corrective action
Electronic Filing, Received, Clerk's Office, March 13, 2007
under Section 55.5(c) of the Act precludes the Board fiom holding a hearing" is inappropriate
since Section
55.5(c) does not apply. 719 Affirmative Defense. Thus, Respondent's second
affirmative defense should be stricken.
C.
Respondent's Third Affirmative Defense.
Respondent's third affirmative defense to all five counts is that because the Illinois EPA
"failed to fulfill the provisions of Section 3
1(b) of the Act, the Attorney General was barred from
filing a complaint against
Sheridan with the Board pursuant to Section 3 l(c)(l) of the Act." 117
Affirmative Defense. This purported defense is a self-serving analysis of the facts and an
erroneous interpretation of the Act by Respondent, and as such, is not an affirmative defense. It
does not contain allegations of fact but rather is pure legal argument, and is wholly improper as
an affirmative defense.
Without waiving its claim that Respondent's Section 3
1 defense is legally deficient, the
State contends that, contrary to what Respondent claims, Illinois EPA fulfilled its statutory
obligations under Section 3 1 of the Act. Section 3
1(b) of the Act provides, in relevant part, as
follows:
For alleged violations that remain the subject of disagreement between the
Agency and the person complained against following fulfillment of the
requirements of subsection (a) of this Section, and as a precondition to the
Agency's referral or request to the Office of the Illinois Attorney General
. . .
for
legal representation regarding an alleged violation that may be addressed pursuant
to subsection (c) or (d) of this Section or pursuant to Section
42 of this Act, the
Agency shall issue and serve, by certified mail, upon the person complained
against a written notice informing that person that the Agency intends to pursue
legal action. Such notice shall notify the person complained against of the
violations to be alleged and offer the person an opportunity to meet with
appropriate Agency personnel in an effort to resolve any alleged violations that
could lead to the filing of a formal complaint. The meeting with Agency personnel
shall be held within 30 days of receipt of notice served pursuant to this subsection
upon the person complained against, unless the Agency agrees to a postponement
or the person notifies the Agency that he or she will not appear at a meeting
within the 30 day time period.
Electronic Filing, Received, Clerk's Office, March 13, 2007
41 5 ILCS 513 1 (b) (2004). Thus, as a precondition to Illinois EPA's referral under Section 3 1,
the Agency must provide notice and the opportunity for the violator to meet to discuss the
violations.
In accordance with Section
3
1, Illinois EPA provided notice of the violations that form
the basis of every count of the Complaint, and held a meeting with the Respondent. Similarly,
Respondent does not contest that notice was provided, nor does it contest that a prefiling meeting
was held between the Agency and Respondent. Indeed, Respondent confirms these facts in its
affirmative defense. "Following the receipt of the Notice of Intent (which incorporated the
alleged violations set forth in the Violation Notice),
Sheridan requested a meeting with Illinois
EPA pursuant to Section
3l(b) of the Act, 415 ILCS 513 l(b). That meeting was scheduled for
September 27,2005 at the offices of Illinois EPA in Des Plaines, Illinois."
78
Affirmative
Defense. "Illinois EPA did hold a purported meeting with
Sheridan at the offices of Illinois EPA
on September 27,2006.
. .
.None of the alleged violations set forth in the Violation Notice,
Narrative Inspection Report and Notice of Intent was resolved."
710 Affirmative Defense.
Therefore, in accordance with Section 3
l(b) of the Act, and as Respondent confirms in its
affirmative defense, Respondent indisputably issued the August 26,2005 Notice of Intent
to
Pursue Legal Action prefiling correspondence and met with Respondent. Hence, in light of the
statutory authority, and the Agency's uncontested compliance with the requisite prefiling
conditions, Respondent's third affirmative defense must be seen for what it is, namely,
a non
sequitur, which therefore, should be appropriately stricken by this Board.
The facts as pled by Respondent,
i.e.,
detailing the actions of the Agency as it went
through the Section
3
1 process in this case, taken as true, quite obviously do not and cannot
support a defense that the Agency failed to comply with Section 3 1.
Electronic Filing, Received, Clerk's Office, March 13, 2007
As plainly stated under Section 3 1 (b) of the Act, before the Agency can refer violations to
the Attorney General, the Agency must indicate in its written notice to "the person complained of
the violations to be alleged and offer the person an opportunity to meet with appropriate Agency
personnel in an effort to resolve any alleged violations that could lead to the filing of a formal
complaint." 415 ILCS 513 1 (b) (2004). Despite this plain directive under the statute, Respondent
argues that Section
3 1 (b) of the Act additionally "imposes upon Illinois EPA thereby a statutory
obligation of, alternatively, making an effort
. .
.of good faith negotiation" and that "[ilf and only
if Illinois EPA meets that statutory obligation may it request legal representation by the Office of
the Illinois Attorney General pursuant to Section 3
1(c) of the Act, 41 5 ILCS 513 l(c) or refer
alleged violations to the Office of the Illinois Attorney General for settlement."
74
Affirmative
Defense. Simply stated, Section 3
l(b) of the Act does not require a "good faith" standard.
Be that as it may, Respondent proceeds to colorfully claim in its affirmative defense that
"it was the practice of Illinois EPA to hold the meeting as a mere formality prior to a referral to
the Office of the Attorney General," that
"[alt the meeting Sheridan made efforts to resolve such
alleged violations by Sheridan's own good faith negotiating not reciprocated by Illinois EPA,"
that "in accordance with its practice, Illinois
EPA made no effort to resolve any alleged
violations," that "the meeting held between the Illinois EPA and
Sheridan on September 27,2006
was a mere pretense" and a "mere formality," and that Illinois EPA "made no effort to resolve
any of the alleged violations set forth in the Violation Notice."
719-1 1 Affirmative Defense.
These repetitive allegations constitute nothing more than a self-serving
narfation by the
Respondent, and do not constitute an affirmative defense.
~
Through this defense, Respondent seeks to invent an additional requirement of "good
faith," which when applied to the Agency evidently means doing whatever Respondent requests,
Electronic Filing, Received, Clerk's Office, March 13, 2007
not what the Agency in its discretion deems appropriate. Even if the facts, as Respondent has
attempted to lay out, are true, the Act does not mandate the Agency's conduct. Nowhere in the
Act or Board regulations does it state that the Illinois EPA must act in "good faith" at a meeting
with the offending party before it can refer alleged violations to the Attorney General. Moreover,
simply repeating something does not make it true.
In other words, Respondent's repeated
contention that it was the Agency's policy to never really make an effort to resolve alleged
violations is merely a biased and baseless assertion, and not the foundation for an affirmative
defense.
Indeed, Respondent provides no statutory authority or case law that conveys such a
standard, simply because, none exists. Respondent purely interjects this "good faith" standard
into the Section
3 1 (b) process, then weakly argues that the Agency has violated this nonexistent
standard. However, Respondent does not give color to the State's causes of action by attacking
the conduct of the Agency, and therefore pleads an improper affirmative defense.
Moreover, even if an affirmative defense based on this so-called "good faith" standard
was available to Respondent, Respondent fails to allege in detail facts relative to specific
procedural requirements with which the Illinois EPA failed to comply. As stated above,
Respondent must plead an affirmative defense with the same degree of specificity required in
order to allege a cause of action. Respondent merely asserts the conclusion that the Agency
failed to conduct its meeting with "good faith" and that Section
3 1(b) provides for this standard.
The defense is completely devoid of factual allegations, and thus clearly lacks the specificity
required for pleading a claim or a defense.
As stated above, this affirmative defense is merely argument by Respondent.
An
argument is not an affirmative defense. See Sreenan and Korleski. Since Respondent's
Electronic Filing, Received, Clerk's Office, March 13, 2007
affirmative defense does not defeat the State's underlying causes of action, the defense is legally
insufficient and should be stricken.
The second portion of Respondent's third affirmative defense, which alleges that because
"Illinois EPA failed to fulfill the requirements of Section 3
1(b) of the Act, 415 ILCS 513 1(b), the
Attorney General was barred
from filing a complaint against Sheridan with the Board pursuant to
I
Section 3 1 (c)(l) of the Act, 41 5 ILCS 3 l(c)(l)," should be stricken as a matter of law, with
prejudice.
71 7 Affirmative Defense. Under Section
3
1, the Illinois EPA may refer violations to
the Attorney General for enforcement which it believes cannot be resolved without the
involvement of the Attorney General. Where Section 3
1(b) of the Act provides that a
I
precondition to Illinois EPAYs referral to the Attorney General for enforcement under Section 3 1
is to provide notice and the opportunity for the violator to meet to discuss the violations, this
I
precondition
does
not
apply to the Attorney General's own filing of a complaint.
Where a regulation is clear on its face, the court must give effect to the language in the
provision. Dean Foods Co. v. Illinois Pollution Control Board, 143
Ill.App.3d 322, 334,492
N.E.2d 1344, 1353 (2nd Dist. 1986). There is no language in the Act that subjects the Attorney
General to the Section 3 1 requirements. Nowhere in Section 3 1 are any restrictions placed on the
Attorney General's authority to proceed with an enforcement case and file a complaint on her
own initiative. People of the State of Illinois
v. Eagle-Picher-Boge, L.L.C., PCB 99-152 (July 22,
1999), slip op. at 4.
Recent Board decisions have decided the issue of whether a cause of action is defeated by
the Illinois
EPA's failure to comply with Section 3 1 procedural requirements, and whether the
Attorney General may prosecute a case exclusive of procedural requirements prescribed by
Section 3 1. This issue is not one of first impression in Illinois, and has been previously decided
Electronic Filing, Received, Clerk's Office, March 13, 2007
during administrative enforcement actions brought before the Board. Numerous Board decisions
have held that Section 3 1 does not apply to the Attorney General.
See,
Eagle-Picher-Bo~e,
L.L.C., PCB 99-152 (July 22, 1999), slip op. at 6 (stating that the notice requirements of Section
3 1 do not apply to the Attorney General);
see also,
People v. Heuerinann, PCB 97-92 (Sept. 18,
1997) (stating that the notice requirements were not intended to bar the Attorney General from
prosecuting an environmental violation). Respondent simply ignores or dismisses this well-
established rule in
its affirmative defense.
In People v. Geon Corporation., PCB 97-62, 1997 WL 621493 (October 2, 1997), the
Board denied the Defendant's motion to dismiss the State's complaint on the basis, in part, that
Section 3 1 did not apply to the Attorney General's Office filing on its own motion. Thus, Illinois
EPA may refer alleged violations of the Act and the regulations to the Attorney General pursuant
to Section
3
1 of the Act, 41'5 ILCS 513 1 (2004), and the Attorney General may allege violations
of the Act and regulations on her own.
See
People v. Peabodv Coal Co., PCB 99-134, (June
5,'
2003)
citing
Eager-Picher-Boge, PCB 99-152.
Accordingly, Section 3 1 does not prevent the Attorney General fi-om maintaining an
action on her own behalf, and she may do so on her own initiative, without a request by the
Illinois EPA. Therefore, Respondent's argument that the Attorney General is prohibited
from
bringing an action on her own behalf because the Illinois EPA failed to fulfill the requirements of
Section 3
l(b) of the Act is invalid. The plain language of the Act, legislative history and legal
precedent directly contradict Respondent's affirmative defense based on Section 3 1 of the Act,
and should therefore be stricken.
Moreover, and as already discussed in Section
A
of this motion, Section 42(e) of the Act
grants the Attorney General independent authority to bring an action alleging violations of the
Electronic Filing, Received, Clerk's Office, March 13, 2007
Act on her own motion or at the request of the Illinois EPA.
See
415 ILCS 5/42(e) (2004). The
State realleges and incorporates by reference herein its argument to Respondent's first
affirmative defense as its argument to this third affirmative defense. Thus, Therefore,
Respondent's argument that the Attorney General is prohibited from bringing an action on her
own behalf because the Illinois EPA failed to fulfill the requirements of Section 3 1 (b) of the Act
is invalid.
For all the reasons cited above, Respondent's Third Affirmative Defense should be stricken
as a matter of law, with prejudice.
IV.
CONCLUSION
WHEREFORE, for the reasons stated, the Complainant, PEOPLE OF THE STATE OF
ILLINOIS, requests that the affirmative defenses of the Respondent be stricken, with prejudice.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
100
W. Randolph Street, 1 lth Floor
Chicago, Illinois 60601
(312) 814-5361
16
Electronic Filing, Received, Clerk's Office, March 13, 2007
~LLINOIS
ENVIRONMENTAL PROTECTION
AGENCY
1021 NORTH
GRAND
AVENUE EAST,
P.O.
Bo\ 19276, SPRINGFIELD, ILLINOIS
6279.1-9276,
2
17-782-3397
~A~\ES
R. THOMPSON
CENTER,
100 WEST
RA~DOLPH, SUITE 1 1 -300, CHICAGO,
IL
6060 1, 3
1
-8
1 4-6026
Roo R. BLACOIEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
8 151987-7760
Fax
#8
151987-7005
May 4,2005
%
CERTIFIED MAIL #7002 2030 000
1
8572' 1303
RETURN RECEIPT REQUESTED
Sheridan Sand
&
Gravel
2679
N. 420 1 Road
Sheridan, Illinois 6055 1
Re:
Violation Notice, L-2005-01188
LPC
#09982
15024
--
LaSalle County
Sheridan (Mission Twp.)lSheridan Sand
&
Gravel
Compliance File
Dear
Mr. Vardijan:
1
This constitutes a Violation Notice pursuant to Section 31(a)(l) of the Illinois Environmental
Protection Act, 415
ILCS 5/31(a)(l), and is based
an inspection
completed on
April 19,2005
by
representatives of the Illinois Environmental Protection Agency ("Illinois EPA").
The Illinois EPA hereby provides notice of alleged violations of environmental statutes,
regulations, or permits
as set forth in the attachment to this notice. The attachment includes an
explanation of the activities that the Illinois EPA believes may resolve the specified alleged
violations, including
an estimate of a reasonable time period to complete the necessary activities.
Due to the nature and seriousness of the alleged violations,
be advised that resolution of
the violations may require the involvement of a
prosecutorial authority for purposes that may
include, among others, the imposition of statutory penalties.
A
written response, which may include a request for a meeting with representatives of the Illinois
EPA, must be submitted via certified mail to the Illinois EPA within 45 days of receipt of this
notice. The response must address each alleged violation specified in the attachment
and include
for each an explanation of the activities that will be implemented and the time
schedule for the
completion of that activity. If a meeting is requested, it shall be held within 60 days of receipt of
this notice.
The written response will constitute a proposed Compliance Commitment
Agreement
("CCA") pursuant to Section 31 of the Act. The Illinois EPA will review the
proposed CCA and will accept or reject it within 30 days of receipt.
I
.. .
EXHIBIT
I
R~CKFORD
-
4302 North Main Street, Rockford, IL 61 103
-
(81 5)
LFJ
.
Harrison St., Des Plaines. I1 6001 6
-
(847) 294-4000
ELCIN
-
595 South State. Elgin, IL 601 23
-
(847) 608
ity St.. Peoria, IL 61614
-(309)
693-5463
BUREAU
OF LAND
-
PEORIA
-
7620 N. University St., Peoria, IL 61614
- (
25 South First Street, Chamoaign.
IL
61820
-
(21 7) 278-5800
SPRINGFIELD.-
4500 5. Sixth Street Rd., Springfield, IL 62706
-
(21
09
Mall Street, Collinsville. IL 62234
-
(618) 346-51 20
MARION
-
2309 W. Main St.. Suite 116, Marion, IL 62959
-
(61 8) 993-7200
Electronic Filing, Received, Clerk's Office, March 13, 2007
Violation Notice,
L-2005-01188
LPC #09982 15024
--
LaSalle County
/
Sheridan (Mission Twp.)/Shendan Sand
&
Gravel
May 4,2005
Page 2
,
If a timely written response to this Violation Notice is not provided, it shall be considered to be a
waiver of the opportunity to respond and to meet provided by Section
3
l(a) of the Act, and the
Illinois EPA may
proceed with a referral to the prosecutorial authority.
Written communications should be directed to:
Illinois EPA
-
Bureau of Land
Attn: Shaun
Newell
4302 North Main Street
Rockford, Illinois
6
1 103
-
*
All communications must include reference to your
Violation Notice
L-2005-01188.
If
you
have questions regarding this matter, please contact
Shaun Newell
at
8151987-7760.
Sincerely,
David S.
Retzlaff
Manager
-
Region 1
4
Field Operations Section
Bureau of Land
DSR:SN:tl
Enclosure
----
-- --
bee:
Division File
Rockford Region
I
I
I
Electronic Filing, Received, Clerk's Office, March 13, 2007
--
Attachment
1.
Pursuant to Section 21(k) of the [Illinois] ~nvironrnental Protection Act (415 ILCS
5/21(k)), no person shall fail or refuse to pay any fee imposed under this Act.
A violation of Section 21(k) of the [Illinois] Environmental Protection Act (415 ILCS 5/2l(k)) is
'
alleged for the following reason:
Failure to pay the required $100.00 Annual Tire Storage
fee for
2005.
2.
Pursuant to Section 55(a)(4) of the [Illinois] Environmental Protection Act (415 ILCS
5/55(a)(4)), no person shall cause or allow the operation of a tire storage site except in
compliance with Board regulations.
A violation of Section 55(a)(4) of the [Illinois] Environmental Protection Act (415 ILCS
5/55(a)(4)) is alleged for the following reason:
Waste tires have accumulated on site for
longer than a year.
Pursuant to Section 55(d)(l) of the [Illinois] Environmental Protection Act (415 ILCS
-
5/55(d)(1)), beginning January 1, 1992, no person shall cause or allow the operation of a
tire storage site which contains more than 50 used tires, unless the owner or operator, by
January
1, 1992 (or the January 1 following commencement of operation, whichever is
later) and January 1 of each year thereafter,
(i) registers the site with the Agency, (ii)
certifies to the Agency that the site complies with any applicable standards adopted by
the Board pursuant to Section 55.2, (iii) reports to the Agency the number of tires
accumulated, the status of vector controls, and the actions taken to handle and process the
tires, and (iv) pays the fee required under subsection
(b) of Section 55.6.
A violation of Section
55(d)(l) of the [fllinois] Environmental Protection Act (415 ILCS
5/55(d)(l)) is alleged for the following reason:
Failure to register as a tire storage site.
4.
Pursuant to Section
55(e) of the [Illinois] Environmental Protection Act (415 ILCS
5/55(e)), no person shall cause or allow the storage, disposal, treatment or processing of
any used or waste tire in violation of any regulation or standard adopted by the Board.
A
violation of Section 55(e) of the .[Illinois] Environmental Protection Act (415 ILCS 5/55(e)) is
alleged for the following reason:
Failure to prevent the waste tires from accumulating water.
5.
Pursuant to Section
55(g) of the [Illinois] Environmental Protection Act (415 ILCS
5/55(g)), no person shall engage in any operation as a used or waste tire transporter
except in compliance with Board regulations.
.
A violation of Section 55(g) of the [Illinois] Environmental Protection Act (415 ILCS 5/55(g)) is
alleged for the following reason:
Waste tires were transferred to the site and transporter
was not permitted to haul tires.
Electronic Filing, Received, Clerk's Office, March 13, 2007
. .
Attachment, page
2
6.
Pursuant to Section 55.6(b) of the [Illinois] Environmental Protection Act (415 ILCS
5/55.6(b)), beginning January 1, 1992;in addition to any other fees required by law, the
owner or operator of each site required to
be registered under subsection (d) of Section'55
shall pay to the Asency an annual fee of $100. Fees collected under this subsection shall
be deposited into the Environmental Protection
Permit
.
and
.
Inspection Fund.
.
.
A violation of Section 55.6(b) of the [Illinois] ~nvironmental Protection Act (415 ILCS
5/55.6(b)) is alleged for the following reason:
Failure to pay the required tire storage fee by
'
January 1 of each year.
7.
Pursuant to Section 55.8(b) of the [Illinois] Environmental Protection Act (415 ILCS
5/55.8(b)), a person who accepts used, tires for recycling under subsection (a) shall not
allow the tires to
accumulat,e for periods of more than 90 days.
A violation of Section
55.8(b) of the [Illinois] Environmental Protection Act (415 ILCS
-
5155.8@)) is alleged for the following reason:
Waste tires have accumulated on site longer
than
90 days.
8.
Pursuant to 35
Ill. Adrn. Code 848.202@)(4), at sites at which more than 50 used or
waste
tires are located the owner or operator .shall comply with the following requirement:
Used or waste tires shall be drained of water on the day of generation or receipt.
A violation of 35 Ill. Adm. Code
848.202@)(4) is alleged for the following reason:
'Failure to
drain the water from
usedlwaste tires stored inside the box trailer.
4
9.
Pursuant to 35
Ill. Adm. Code 848.202@)(5), at sites at which more than 50 used or waste
tires are located the owner or operator shall comply with, the following requirement:
Used or waste tires received at the site shall not be stored unless within 14 days
after the
.
receipt of any used tire the used tire is altered, reprocessed; converted, covered or
otherwise prevented from accumulating water.
A violation of35 Ill. Adrn. Code 848.202(b)(5) is alleged for the following reason:
Failure to
prevent water 'from accumulating inside waste tires- that have been stored on site longer
than 14 days.
10.
Pursuant to 35
111. Adrn. Code 848.202(c)(l), 'in addition to the requirements set forth in
subsection
[848.202] (b), the owner or operator shall comply with the following
requirement at sites at which more than 500 used or waste tires are located.
A
contingency plan, which meets the requirements of Section 848.203 shall be maintained.
A violation of 35
Ill. Adrn. Code 848.202(~)(1) is alleged for the following reason:
There were
more than
500 tires on site and no Contingency Plan on site.
Electronic Filing, Received, Clerk's Office, March 13, 2007
Attachment, page
3
11.
Pursuant to 35
Ill. Adm. Code 848.202(~)(2), in addition to the requirements set forth in
subsection
[848.202] (b), the owner or operator shall comply with the following
requirement 'at sites at which more than 500 used or waste tires are located. The
recordkeeping and reporting requirements of [35
Ill. Adm. Code 8481 Subpart C shall be
.
met.
A violation of 35
Ill. Adm. Code 845.202(~)(2) is alleged for the following reason: There are no
tire disposal records on site.
12:
Pursuant to 35
Ill. Adm. Code 848.302(a)(l), the owner or operator shall keep a record of
used and waste tires at the site. The owner and operator shall keep the following records:
1)
Daily Tire Record
2)
Annual Tire Summary
-
A violation of 35 Ill. Adm. Code 848.302(a)(l) is alleged for the following reason:
Tire storage
sites that maintain more than
500 usedwaste tires are required to keep a Daily Tire Record
on site. There was no Daily Tire Record on site.
13.
Pursuant to 35
111. Adm. Code 848.302(a)(2), the owner or operator shall keep a record of
used and waste tires at the site. The owner and operator shall keep the following records:
1)
Daily Tire Record
2)
Annual Tire Summary
4
A violation of 35 Ill. Adm. Code 848.302(a)(2) is alleged for the following reason:
Tire storage
sites that maintain more than
500 usedwaste tires are required to keep an Annual Tire
Summary. There is no evidence that an Annual Tire Summary was submitted to
Springfield Headquarters.
14.
Pursuant to 35
Ill. Adm. Code 848.304(c), the Annual Tire Summary shall be received by
the Agency on or before January 31 of each year and shall cover the preceding calendar
year.
A violation of 35 Ill. Adm. Code 848.304(c) is alleged for the following reason:
Failure to
submit an Annual Tire Summary by January
31 of each year.
15.
Pursuant to 35 Ill.
dm Code 848.305, copies of all records required to be kept under
this [35 Ill. Adrn. Code
8481 Subpart [C] shall be retained by the owner and operator for
three years and shall be made available at the site during the normal business hours of the
operator for inspection and photocopying by the Agency.
C.s
Electronic Filing, Received, Clerk's Office, March 13, 2007
I
-
-.
Attachment, page 4
I
A violation of 35 111. Adm. Code 848.305 is alleged for the following reason:
No tire records
were found on site.
16.
Pursuant to 35
111. Adm. Code 848.601(a)(l), except as provided in subsection (848.6011
(c), no person shall transport more than 20 used o.r waste tires in a vehicle unless the
following requirements are met.
-
1)
The owner or operator has registered the vehicle with the Agency in accordance
with this
(35 Ill. Adm. Code 8481 Subpart IF], received approval of such
registration
fiom the Agency, and such registration is current, valid and in effect.
2)
The owner or operator displays a placard on the vehicle, issued by the Agency
following registration, in accordance with the requirements of this [35 Ill. Adm.
Code
8481 Subpart [F].
A violation of
35 Ill. Adm. Code 848.601(a)(l) is alleged for the following reason:
Failure to
-
register as an Illinois registered tire transporter.
17.
husuant to 35 Ill. Adm. Code 848.601(a)(2), except as provided in subsection [848.601]
(c), no person shall transport more than 20 used or waste tires in a vehicle unless the
following requirements are met.
1)
The owner or operator
has registered the vehicle with the Agency in accordance
with this
[35
Ill. Adm. Code 8481 Subpart
IF],
received approval of such
registration
f?om the Agency, and such registration is current, valid and in effect.
2)
The owner or operator displays a placard on the vehicle, issued by the Agency
following registration,
in accordance with the requirements of
this
[35 Ill. Adm.
Code 8481 Subpart [F].
A violation of 35 Ill. Adm. Code
848.601(a)(2) is alleged for the following reason:
Failure to
display an Illinois registered tire transporter placard
on your vehicle.
Suggested Resolutions
>
Immediatelv complete the attached Notification/Registration form and pay the required
tire storage fee for 2005.
By June
19,
2005, dispose of all usedlwaste tires on site using an Illinois registered tire
transporter.
Or
Cc
I
Electronic Filing, Received, Clerk's Office, March 13, 2007
Attachment, page
5
Immediatelv drain all water from the used/waste tires on site. Immediately store all the
used tires in such a manner as to prevent them from accumulating water. Waste tires must
be disposed using an Illinois registered tire transporter.
By June 19,2005, complete the attached:
I
.
-
Contingency Plan
-
a sample plan was provided. Please modify this plan as needed.
-
Annual Tire Summary. Please complete and submit this form to Springfield
(Headquarters).
-
Daily Tire Record.
Immediately track the number of tires generated on
your
property. This form must be kept on site for IEPA review.
The written response to this Violation Notice must include information in rebuttal,
explanation, or justification of each alleged violation and must be submitted to the Illinois
EPA
by
certified mail, within 45 days of receipt of this Violation Notice.
'
The written
response must also include a proposed Compliance Commitment Agreement that commits
to specific remedial actions, includes specified times for achieving each commitment, and
may include a statement that compliance has been achieved.
Electronic Filing, Received, Clerk's Office, March 13, 2007
CERTIFICATE OF SERVICE
I, VANESSA A. VAL, an Assistant Attorney General, do certify that I caused to be
mailed this 14th day of March 2007, a true and correct copy of the attached MOTION TO
STRlKE FIRST AMENDED 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, March 13, 2007