ILLINOIS POLLUTION CONTROL BOARD
    May 15, 2008
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    DISTINCTIVE HOMES, LTD., and
    DISTINCTIVE COMPANIES, LTD.
    Respondents.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 08-45
    (Enforcement – Water)
    ORDER OF THE BOARD (by N.J. Melas):
    On February 13, 2008, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a two-count complaint against Distinctive Homes, Ltd. and
    Distinctive Companies, Ltd. (collectively respondents). The complaint concerns respondents’
    “Villas of Fountain Hills” residential development located at Wolf Road, one block south of
    179th Street in the Village of Orland Park, Cook County. By order of February 18, 2008, the
    Board accepted the complaint for hearing.
    Respondents filed an answer and affirmative defenses (Ans.) on March 28, 2008, which
    the People moved to strike on April 24, 2008. To date, respondents have not responded to the
    motion. Section 101.500(d) of the Board’s procedural rules provides that, “[w]ithin 14 days after
    service of a motion, a party may file a response to the motion. If no response is filed, the party
    will be deemed to have waived objection to the granting of the motion, but the waiver of
    objection does not bind the Board or the hearing officer in its disposition of the motion.” 35 Ill.
    Adm. Code 101.500(d).
    In this case, the People allege that respondents violated Sections 12(b) and (f) of the
    Environmental Protection Act (Act) (415 ILCS 5/12(b), (f) (2006)) and Sections 309.102(a) and
    309.202(a) of the Board’s water pollution regulations (35 Ill. Adm. Code 309.102(a),
    309.202(a)). The People allege that respondents violated these provisions by constructing,
    installing, and operating a sanitary sewer at the site without a construction permit from the
    Illinois Environmental Protection Agency (Agency); and by failing to obtain from the Agency a
    National Pollutant Discharge Elimination System (NPDES) stormwater permit for construction
    site activities.
    In their answer, respondents admit some facts and deny others. In closing, as affirmative
    defenses, respondents allege that:
    1)
    The Metropolitan Water Reclamation District and the Village of Orland
    Hills issued the requisite permits for the work performed at the site, and
    2
    2)
    The Metropolitan Water Reclamation District and the Village of
    Orland Hills inspected and approved the work performed at the
    site. Ans. at unnumbered p. 13.
    In the motion to strike (Mot.), citing Illinois court and Board precedent, the People
    remind that “an affirmative defense confesses or admits the allegations in the complaint, and
    then seeks to defeat a [complainant’s claim] by asserting new matter not contained in the
    complaint and answer.” Mot. at 2. The People assert that neither of respondents’ alleged
    affirmative defenses pleads facts relevant to the complaint’s allegations, namely that respondents
    performed work without Agency-issued construction and NPDES stormwater permits. The
    People assert that these alleged affirmative defenses are legally insufficient, unsupported by
    caselaw, and fail to defeat the complaint’s causes of action. The People accordingly request that
    the Board dismiss both affirmative defenses with prejudice. Mot. at 5-6.
    The Board grants the People’s motion to strike the affirmative defenses. As the People
    have discussed, neither of the respondents’ allegations meet the definition of “affirmative
    defense” or, if proven, would serve to defeat the complaint’s allegations that the respondents
    performed sanitary sewer work without required permits. Respondents are free to present
    evidence concerning permits issued, or inspections made, by the Metropolitan Water
    Reclamation District and the Village of Orland Hills as mitigating evidence under Sections 33(c)
    and 42(h) of the Act (415 ILCS 5/33(c), 42(h) (2006)).
    IT IS SO ORDERED.
    I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
    Board adopted the above order on May 15, 2008, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

    Back to top