BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    PEOPLE
    OF THE STATE
    OF ILLINOIS,
    )
    )
    Complainant,
    )
    )
    vs.
    PCB No. 10-9
    )
    (Cost Recovery)
    GEV
    OFpj
    WASTE
    HAULING LANDFILL,
    INC., et ak,
    )
    2
    EP
    172009
    Respondents.
    )
    POlltJtjfl
    STATE
    OFIL.LI
    Cr+
    •
    IS
    NOTICE
    OF
    FILING
    dI,LroJ
    Board
    To:
    ARAMARK
    UNIFORM SERVICES,
    INC.
    C
    T Corporation
    System
    zu
    south LaSauie St.,
    Suite
    814
    Chicago,
    IL
    60604
    BELL
    SPORTS,
    INC.
    do John E.
    Collins
    Husch
    Blackwell Sanders,
    LLP
    190 Carondelet
    Plaza, Suite 600
    St. Louis, MO
    63105
    A.
    E.
    STALEY
    MANUFACTURING
    CO.
    do
    Jeryl
    Olson,
    James
    Curtis and
    Elizabeth Leifel Ash
    Seyfarth
    Shaw
    13 1 South
    Dearborn St.,
    Suite 2400
    Chicago,
    IL 60603
    BORDEN
    CHEMICAL
    CO.
    do
    Matthew Larson
    Shook
    Hardy
    &
    Bacon
    2555
    Grand
    Boulevard
    Kansas
    City,
    MO
    64108
    ARCHER
    DANIELS
    MIDLAND,
    INC.
    do C T
    Corporation
    System
    208
    South
    LaSalle
    St., Suite 814
    Chicago,
    IL 60604
    CATERPITLLAR,
    INC.
    do Kevin
    Desharnais and
    Jennifer Simon
    Mayer
    Brown
    LLP
    71
    South
    Wacker
    Drive
    Chicago,
    IL 60606-463
    7
    CLIMATE
    CONTROL,
    INC.
    do
    Edward
    Q.
    Costa
    Samuels,
    Miller,
    Schroeder,
    Jackson
    &
    Sly
    1
    CERTIFICATE
    OF SERVICE
    I hereby
    certify
    that I did on the
    I5t
    day
    of September, 2009, send
    by
    First Class Mail, with
    postage
    thereon
    fully prepaid, a true
    and correct
    copy of
    the instruments entitled Notice of Filing,
    Response
    to
    Motion to Dismiss Complaint
    TO:
    ARAMARK UNIFORM SERVICES, INC.
    C T
    Corporation
    System
    208 South
    LaSalle
    St.,
    Suite 814
    Chicago, IL 60604
    BELL
    SPORTS,
    INC.
    do John E.
    Collins
    Husch
    Blackwell Sanders, LLP
    190 Carondelet Plaza,
    Suite
    600
    St. Louis,
    MO
    63105
    A. E.
    STALEY MANUFACTURING CO.
    do Jeryl Olson, James
    Curtis
    and
    Elizabeth Leifel Ash
    Seyfarth Shaw
    13 1 South
    Dearborn St.,
    Suite 2400
    Chicago, IL
    60603
    BORDEN
    CHEMICAL CO.
    do Matthew
    Larson
    Shook
    Hardy &
    Bacon
    2555
    Grand Boulevard
    Kansas City,
    MO 64108
    ARCHER
    DANIELS
    MIDLAND, INC.
    do C
    T
    Corporation System
    208
    South
    LaSalle
    St., Suite
    814
    Chicago,
    IL
    60604
    CATERPIILLAR,
    INC.
    do
    Kevin
    Desharnais and
    Jennifer Simon
    Mayer
    Brown LLP
    71 South
    Wacker
    Drive
    Chicago,
    IL
    60606-4637
    CLIMATE
    CONTROL,
    INC.
    do
    Edward
    Q.
    Costa
    Samuels,
    Miller,
    Schroeder,
    Jackson &
    Sly
    P.O.
    BOX
    1400
    225
    N.
    Water
    Street,
    Suite 301
    Decatur, IL
    62525-1400
    3
    BEFORE
    THE ILLINOIS POLLUTION
    CONTROL
    BOARD
    CLED
    PEOPLE
    OF THE STATE OF
    ILLINOIS,
    )
    ICE
    SEp
    72009
    Complainant,
    )
    TE
    OF
    ILL’-.
    COnE
    1
    S
    VS.
    )
    PCB No. 10-9
    ro,
    8
    Oard
    )
    (Cost Recovery)
    WASTE
    HAULING LANDFILL,
    INC.,
    et al.,
    )
    Respondents.
    )
    RESPONSE TO MOTION
    TO DISMISS COMPLAINT
    The Complainant, People
    of the State of Illinois, by Lisa Madigan, Attorney General
    of the State
    of
    illinois, submits this response
    to the motion of Caterpillar, luc., to dismiss the
    ConpL: As stablished
    below, that motion should be denied.
    A.
    The
    Complaint
    states a cause of action against Caterpillar.
    1.
    As its first basis for dismissing
    the Complaint,
    Caterpillar points
    out that
    paragraph
    23 of
    the
    original
    complaint omitted
    reference
    to Section
    22.2(0(3)
    ofthe Environmental Protection Act, 415 ILCS
    5/22.2(0(3).
    Due to a typographic error, paragraph
    23
    ofthe Complaint omitted that reference. Complainant
    has moved
    for
    leave
    to amend the complaint to correct that error.
    2.
    Paragraph 23 originally alleged that:
    23.
    Respondents are
    each
    a
    responsible
    party as
    described in Section
    22.2(0(1)-
    (2)
    of
    the Act,
    415 ILCS
    4/22.2(0(1
    )-(2). Respondents are each
    liable
    for
    past,
    present, and future removal
    costs, as
    defined
    by
    the Act, incurred
    by the State
    resulting or arising out of
    the
    releases
    and
    threatened releases
    at
    the Landfill.
    3.
    A
    reference to subparagraph (3) of Section 22.2(f) ofthe Environmental Protection Act was
    inadvertently omitted. That subparagraph imposes liability for response and removal costs upon
    any
    person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged
    with
    a
    transporter for transport for disposal or treatment,
    of
    such hazardous substances owned
    or
    possessed by such person, by any other party or entity,
    at
    any facility,
    *
    *
    *,
    owned
    or
    operated
    by
    another party or entity and containing such hazardous substances,
    * * *
    That
    subparagraph was included in the
    excerpt
    of Section 22.2(f) quoted in paragraph 20 of the Complaint.
    Paragraph
    23
    should have
    provided
    that:
    1
    23.
    Respondents
    are each
    a
    responsible party
    as described in
    Section 22.2(f)(1)-(3)
    of
    the Act, 415 ILCS 4/22.2(f)(
    1 )-(3). Respondents are each liable
    for past, present,
    and future
    removal
    costs, as defined by the
    Act, incurred
    by the State resulting or arising
    out of the
    releases
    and
    threatened
    releases at
    the
    Landfill.
    4.
    For
    further clarification,
    paragraph
    23
    will now provide
    that:
    23.
    Respondents
    are each a responsible party
    as described in Section
    22.2(f)(1),
    (2),
    or
    (3) of the
    Act,
    415 ILCS
    4/22.2(f)( 1), (2), or
    (3). Respondents are each
    liable for past,
    present,
    and
    future removal costs,
    as
    defined
    by the Act, incurred
    by
    the
    State resulting or
    arising out
    of the
    releases and threatened releases
    at the Landfill.
    5.
    Thus,
    the
    complaint states
    a cause
    of action against
    entities such
    as Caterpillar which
    sent
    wastes containing
    hazardous substances
    to
    the
    Waste
    Hauling
    Landfill.
    B.
    Section
    58.9(a)(1)
    of the Act does not bar this action.
    1.
    Caterpillar assertion that Section 58.9(a)(1) of
    the Act, 415 ILCS
    5/58.9(a)(1),
    requires
    dismissal
    of the Complaint ignores the requirement of35
    Ill.Adm.Code 741.205 that “proportionate
    share”
    is
    a
    burden of
    proof
    issue rather than
    a
    pleading requirement,
    2.
    As the Board held,
    Proportionate share liability is
    a
    limitation on remedies,
    not a bar to a cause of action.
    See
    Proportionate
    Share Liability:
    35
    Ill.Adm.Code 741, R97-16,
    slip op. at 4 (Dec. 17, 1998).
    Cole Taylor Bank v. Rowe Industries, et al., PCB
    01-173
    slip op. at 4 (June 2, 2002).
    2002
    WL
    1298771.
    3.
    35
    lll.Adm.Code 741.205 establishes
    the Complainant’s burden of proof
    when
    bringing
    an
    action to
    recover the costs of
    a
    response.
    35
    Ill.Adm.Code 741.205(c)
    specifically provides
    that
    a
    complainant is not obligated to plead
    “a
    specific alleged percentage of liability”
    to state a claim.
    4.
    Pleading
    Section
    58.9(a)(1) as an affirmative defense rather than
    as a part of the claim
    is in
    keeping with the structure of Title XVII of the Act since certain respondents are
    precluded from invoking
    it. 35
    Ill.Adrn.Code 741.105(f) provides that “proportionate share” is not applicable
    to owners or operators
    of a
    treatment, storage or
    disposal
    site subject to a
    permit
    under State solid
    waste
    laws
    or
    which
    is subject
    to
    closure under State solid waste laws.
    5
    The Waste
    Hauling
    Landfill had been
    issued
    a permit under State solid
    waste laws.
    See
    People ofthe State ofIllinois v.
    Waste Hauling
    Landfill,
    Inc.,
    et
    al., PCB 95-91, May 21,
    1998 Opinion and
    2
    Order,
    p.
    6.
    The
    Waste
    Hauling
    Landfill was
    also subject to
    closure
    requirements
    under State
    solid waste
    laws.
    Ibid, Opinion and Order,
    pp.19-20. Waste
    Hauling Landfill, Inc.,
    and Jerry Camfield
    are thus
    excluded.
    6.
    Section 58.9(a)(1)
    does
    not
    bar this complaint.
    Provisions
    of the Act and Regulations
    applicable
    to “violations” do not
    apply to cost recovery
    proceedings.
    The
    General
    Assembly
    and the
    Pollution
    Control
    Board have recognized that cost
    recovery
    actions
    are markedly different from
    enforcement proceedings
    to address violations ofthe Act and
    regulations.
    Thus, Caterpillar’s
    attempt to bootstrap the
    complaint into the procedures applicable
    to enforcement
    proceedings
    must be rejected.
    2.
    As noted above,
    35
    Ill.Adm.Code
    Part 741 establishes “the procedures
    under which the
    Board
    will allocate proportionate shares
    of
    ***
    costs of a response
    * * *“
    (35
    Il1.Adm.Code 741.100).
    35
    Ill.Adm.Code
    741.105(b)
    provides
    that
    in the event ofa conflict between
    35
    Ill.Adm.CodeParts 101 and
    103
    and Part
    741, Part
    741
    applies. Thus,
    provisions establishing pleading requirements for enforcement action
    complaints
    addressing violations of the
    Act
    are
    not applicable to cost recovery proceedings.
    3.
    35 Ill.Adm.Code 103 .204 establishes
    the requirements for
    an “enforcement
    proceeding.”
    “Enforcement proceeding” is a defined term under
    35 1l1.Adm.Code 10 1.202 and that definition does not
    mention
    complaints seeking cost recovery. The Complaint
    in this cause is
    for
    a “cost
    recovery”
    proceeding
    and
    therefore, not subject to 103.204.
    4.
    Similarly,
    the requirements of Section
    31(a)-(e)
    for complaints in enforcement actions
    also
    do not
    apply to cost recovery actions since those provisions
    are triggered by “violations” of the Act or
    regulations. Section 22.2(f) imposes liability for
    costs resulting from “a release or substantial threat of
    a
    release
    of a hazardous substance or pesticide.”
    5.
    Thus, the requirements
    of Section 31 and
    35
    Ill.Adm.Code 103.204 do not apply to
    this
    complaint.
    3
    D.
    Conclusion
    WHEREFORE, Complainant
    prays that the
    motion of the Respondent,
    Caterpillar,
    Inc.,
    to dismiss
    the complaint
    be denied.
    Respectfully submitted,
    PEOPLE OF THE
    STATE
    OF ILLINOIS
    LISA MADIGAN,
    Attorney General
    of the
    State of
    Illinois
    MATTHEW
    J. DUNN, Chief
    Evironment
    Litigation Division
    BY:________
    /
    JAMES L.
    MORGANC/
    Sr. Assistant
    Attorney General
    Environmental
    Bureau
    500 South
    Second Street
    Springfield,
    Illinois
    62706
    217/782-903
    1
    Dated:
    September 15, 2009
    4

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