BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
)
Complainant,
)
)
v.
)
)
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and DISTINCTIVE
)
COMPANIES, LTD., an Illinois
)
limited liability corporation,
)
)
Respondents.
)
PCB No. 2008
- 045
(Enforcement- NPDES)
NOTICE OF ELECTRONIC FILING
TO:
James J. Roche
James
J. Roche
&
Associates
642 N. Dearborn St.
Chicago,
IL
60610-4785
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago,
IL
60601
PLEASE TAKE
NOTICE that today, April 24, 2008, I have filed with the Office of the
Clerk of the Illinois Pollution Control Board
by electronic filing the following Motion
to
Strike
and Dismiss Respondents', Distinctive Homes, Ltd. and Distinctive Companies, Ltd., Affirmative
Defenses a true and correct copy of which
is attached and hereby served upon you.
PEOPLE
OF THE STATE OF ILLINOIS,
by LISA MADIGAN,
Attorney General
of the State of Illinois
BY:
~Yf,fh<}a-SW-K++-----
~/1~X
Assistant Attorney General
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-8567
Electronic Filing - Received, Clerk's Office, April 24, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and DISTINCTIVE
)
COMPANIES, LTD., an Illinois
)
limited liability corporation,
)
)
Respondents.
)
PCB No. 2008
- 045
(Enforcement- NPDES)
MOTION TO DISMISS RESPONDENTS',
DISTINCTIVE HOMES, LTD. AND DISTINCTIVE COMPANIES, LTD.,
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 5/2-615 (2006), and moves to dismiss Respondents',
DISTINCTIVE HOMES, LTD.
AND DISTINCTIVE COMPANIES, LTD., two
affirmative defenses. In support thereof, Complainant states
as follows:
INTRODUCTION
On February 13, 2008, Complainant filed its Complaint for Injunctive Relief and
Civil Penalties ("complaint"), alleging violations of the Illinois Environmental Protection
Act ("Act")' 415 ILCS 5/1 et
seq.
(2006). On March 27,2008, Respondents, Distinctive
Homes, Ltd. and Distinctive Companies, Ltd. ("Respondents" or "Distinctive"), filed their
Answer
to Complaint for Injunctive Relief and Civil Penalties ("Answer"), along with two
affirmative
Electronic Filing - Received, Clerk's Office, April 24, 2008
defenses. However, Respondents' affirmative defenses are legally insufficient as a
response to Complainant's allegations,
and should be dismissed.
I.
LEGAL STANDARD FOR AFFIRMATIVE DEFENSES
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. Condon v. American
Telephone and Telegraph Company, Inc., 210 Ill.App.Jd 701, 709, 569 N.E.2d 518,523
(2nd Dist. 1991); Vroegh v. J & M Forklift, 165 Il1.2d 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.
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.
35
Ill. Adm. Code 103.204(d). In addition, Section
2~613(d)
of the Illinois Code of Civil
Procedure, 735 ILCS
5/2~613(d)
(2004), is instructive, providing that "[t]he 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
2
Electronic Filing - Received, Clerk's Office, April 24, 2008
specificity required by a plaintiff to establish a cause of action. International Insurance
Co.
v. Sargent & Lundy, 242 Ill.App.3d 614,609 N.E.2d 842, 853 (1st Disc 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 (1
st
Disc 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 (1st 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
st
Dist. 1998).
II. RESPONDENTS' AFFIRMATIVE DEFENSES ARE
LEGALLY INSUFFICIENT
A.
First
Affirmative Defense
Respondents' First Affirmative Defense provides, as follows:
The Metropolitan Water Reclamation District and the Village of Orland Hills issued the
requisite permits for the work performed at the Site.
Respondents' First Affirmative Defense pleads no relevant fact whatsoever to
defeat the complaint. Instead, this 'affirmative defense' simply alleges a fact not relevant
to the violations of the Act and the Board Water Pollution Regulations as alleged in the
complaint and provides no additional facts, statute or caselaw that sets forth a legally
3
Electronic Filing - Received, Clerk's Office, April 24, 2008
recognized defense that defeats Complainant'sclaim. Therefore, the Respondents' First
Affirmative Defense should be dismissed for legal insufficiency.
The complaint alleges that Respondents violated the Illinois Environmental
Protection Act, 415 ILCS 5/12
(b) and (f) (2006) and the Board Water Pollution
Regulations, 35 Ill. Adm. Code 309.202
(a) and 309.102 (a) when Respondents
constructed sanitary sewer lines and engaged in other construction activities
at the Site
without the requisite permits issued by the Illinois EPA
as required by the Act and Board
Water Pollution Regulations. In the Respondents' Answer to the Complaint,
Respondents admit
that the Act and the Board Water Pollution Regulations apply to its
ownership and development
of the Site, including the construction of sanitary sewer lines
and other construction activities, and
that it did construct sanitary sewer lines and engage
in other construction activities
at the Site. In addition, the Respondents assert a new
alleged fact, they were issued permits by the Metropolitan
Water Reclamation District
("MWRD") and the Village
of Orland Hills for work performed at the Site, as an
'affirmative defense'.
Even if Respondents were issued permits from the
MWRD and the Village of
Orland Hills for work performed at the Site, these were not the same permits the
Complainant alleged in its complaint
that the Act and Board Water Pollution
Regulations require
to be issued by the Illinois EPA for the construction of sanitary sewers
and other construction activities
at the Site. Moreover, permits issued by the MWRD
and the Village of Orland Hills to perform work at the Site are not an exception to or
requirement
of the Act or Board Water Pollution Regulations that might defeat
Complainant's right
to its claim.
4
Electronic Filing - Received, Clerk's Office, April 24, 2008
. In sum, Respondents can allege no set of facts that would support a defense that
the issuance of permits by the MWRD or the Village of Orland Hills to perform work at
the Site satisfies the requirement, pursuant to the
Act and Board Water Pollution
Regulations, of an Illinois EPA issued permit. Therefore, the Respondents' First
Affirmative Defense, which does not defeat the Complainant's right to its cause of action
upon which relief can be granted, does
not meet the legal standard required for an
affirmative defense, and should be dismissed with prejudice.
B. Second Affirmative Defense
Respondents' Second Affirmative Defense provides,
as follows:
The Metropolitan Water Reclamation District and the Village of Orland Hills inspected and
approved the work performed at the Site.
As in its First Affirmative Defense, Respondents' Second Affirmative Defense
pleads no relevant fact whatsoever. Again, this 'affirmative defense' simply alleges a fact
not relevant
to
the violations of the Act and the Board Water Pollution Regulations as
alleged in the Complaint and provides no additional facts, statute or caselaw to support a
legally recognized defense
that defeats Complainant'sclaim. Therefore, the Respondents'
Second Affirmative Defense should be dismissed
for legal insufficiency.
In Respondents' Second Affirmative Defense, the Respondents assert a new
alleged fact,
that work performed at the Site was inspected and approved by the
Metropolitan
Water Reclamation District and the Village of Orland Hills, as an
'affirmative defense'. Even if work performed at the Site was inspected and approved by
the MWRD and the Village of Orland Hills, this alleged fact does
not defeat the
complaint's allegation
that the Act and Board Water Pollution Regulations required
5
Electronic Filing - Received, Clerk's Office, April 24, 2008
approval by the Illinois EPA for the construction of sanitary sewers and other
construction activities at the Site. Moreover, inspections and approval
by the MWRD
and the Village of Orland Hills
for work performed at the Site are not an exception to or
requirement of the
Act or Board Water Pollution Regulations that might defeat
Complainant's right to its claim.
Here again, Respondents can allege no set
of facts that would support a defense
that an inspection
of work performed at the Site by the MWRD or the Village of Orland
Hills satisfies the requirement, pursuant to the Act and Board Water Pollution
Regulations, of
an Illinois EPA approval. Therefore, the Respondents' Second
Affirmative Defense, which does not defeat the Complainant's right
to its cause of action
upon which relief can be granted, does not meet the legal standard required
for an
affirmative defense, and should be dismissed with prejudice.
WHEREFORE, Complainant, PEOPLE OF
THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order dismissing Respondents',
DISTINCTIVE HOMES, LTD.
AND DISTINCTIVE COMPANIES, LTD., two
Affirmative Defenses, with prejudice.
PEOPLE
OF THE STATE OF
ILLINOIS, LISA MADIGAN
Attorney General
of the State of Illinois
By:
~
NANCY. I
S
Assistant Attorney:
ene I
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312)814-8567
Date: April 24, 2008
6
Electronic Filing - Received, Clerk's Office, April 24, 2008
CERTIFICATE OF SERVICE
I,
Nancy J. Tikalsky, an Assistant Attorney General, do certify that a true and correct
copy of the Motion to Strike
and Dismiss Respondents', Distinctive Homes, Ltd. and
Distinctive Companies, Ltd., Affirmative Defenses
was sent by certified mail with return
receipt requested to the persons listed on the Notice of Filing on April 24, 2008.
BY:
\1X1~~-
:...p
(l
NANCYTTLS ---
Electronic Filing - Received, Clerk's Office, April 24, 2008
