BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
vs.
WASTE HAULING LANDFILL, INC., JERRY
CAMFIELD,
A. E.
STALEY MANUFACTURING
CO., ARCHER DANIELS MIDLAND, INC.,
ARAMARK UNIFORM SERVICES, INC., BELL
SPORTS, INC., BORDEN CHEMICAL CO.,
BRIDGESTONEIFIRESTONE, INC., CLIMATE
CONTROL, INC., CATERPILLAR INC., COMBE
LABORATORIES, INC., GENERAL ELECTRIC
RAILCAR
SERVICES CORPORATION, P
&
H
MANUFACTURING,
INC., TRINITY RAIL
GROUP, INC., TRIPLE S REFINING
CORPORATION, and ZEXEL ILLINOIS, INC.,
Respondents.
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NOTICE OF FILING
TO:
Matthew J. Dunn, Chief
PCB No. 10-9
(Enforcement - Land, Cost
Recovery)
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
James
L. Morgan, Sf. Assistant Attorney General
Environmental Bureau
Suite 11-500
100
West Randolph Street
Chicago, IL 60601
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
Environmental Enforcement/Asbestos Litigation Division
500 South Second Street
Springfield, Illinois 62706
Persons included on the attached SERVICE LIST
PLEASE
TAKE NOTICE that on this date I have filed with the Office of the Clerk of the
Pollution Control Board Caterpillar's Motion for Leave to Reply and Reply to the State's
Response to Motion to Dismiss Complaint, a copy
of which is herewith served upon you.
Electronic Filing - Received, Clerk's Office, October 2, 2009
Date: October 2,2009
Kevin G. Desharnais
Jennifer
A.
Simon
Mayer Brown
LLP
71 South Wacker Drive
Chicago, illinois
60606-4637
(312) 701-8407 (phone)
(312) 706-8117 (fax)
jsimon@mayerbrown.com
CATERPILLAR INC.
2
Electronic Filing - Received, Clerk's Office, October 2, 2009
CERTIFICATE OF SERVICE
I, the undersigned, certify that, on this October 2,2009, I have served electronically the
attached Motion for Leave to Reply and Reply to the State's Response to Motion to Dismiss
Complaint upon the following person:
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago,
IL
60601
and by U.S. Mail, first class postage prepaid, to the following persons:
Carol Webb, Hearing
Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield,
IL
62794-9274
Matthew J. Dunn, Chief
James
L. Morgan, Sr. Assistant Attorney General
Environmental Bureau
Environmental Enforcement/Asbestos Litigation Division
500 South Second Street
Springfield, Illinois 62706
The persons included on the attached SERVICE LIST
Electronic Filing - Received, Clerk's Office, October 2, 2009
Bell Sports, Inc.:
John
E. Collins
Husch Blackwell Sanders, LLP
190 Carondelet Plaza, Suite 600
St.
Louis, MO 63105-3441
SERVICE LIST
Combe Laboratories, Inc.:
Theresa Duckett
Locke, Lord Bissell
&
Liddell LLP
111 S. Wacker Drive
Chicago, IL
60606
Tate and Lyle Ingredients Americas, Inc.:
Aramark Uniform Services, Inc.:
James
L. Curtis, Jeryl L. Olson, and
Elizabeth Leifel Ash
Seyfarth Shaw
131 South Dearborn Street, Suite 2400
Chicago, IL 60603-5803
Climate Control, Inc.:
Edward Q. Costa
SAMUELS, MILLER, SCHROEDER,
JACKSON
&
SLY, LLP
225 North Water,
Suite 301
P.O.
Box 1400
Decatur, IL 62525-1400
Trinity Rail Group, Inc.:
Michael
F. Dolan
Kristin
L. Parker
Jones Day
77 West Wacker, 35th Floor
Chicago, IL
60601
Jennifer Nijman
Susan Franzetti
Nijman Franzetti LLP
10
South LaSalle Street, Suite 3600
Chicago, IL 60603
P
&
H Manufacturing, Inc.:
Edward
W. Dwyer
HODGE DWYER
&
DRIVER
3150 Roland Avenue
Post
Office Box 5776
Springfield, IL 62705-5776
Triple
S
Refining Corporation:
David
H. DeCelles
Jeffrey
J. Zeiger
KIRKLAND
&
ELLIS LLP
200 East Randolph Drive
Chicago, IL
60601
Borden Chemical Co.
/
Hexion Specialty Chemicals, Inc.:
William J. Denton
Mathew
L. Larsen
SHOOK, HARDY
&
BACON, L.L.P.
2555 Grand Blvd.
Kansas City, Missouri 64108
General Electric Railcar Services Corp.
c/o CT Corporation
System
208 S
LaSalle St., Ste. 814
Chicago, IL
60604
Archer Daniels Midland, Inc.
c/o CT Corporation
System
208 S
LaSalle St., Ste. 814
Chicago, IL
60604
Zexel Illinois, Inc.
c/o Kathy Carter, R.A.
625 Southside Drive
Decatur, IL 62525
Bridgestone Firestone, Inc.
c/o CT Corporation
System
208 S
LaSalle St., Ste. 814
Chicago, IL
60604
Electronic Filing - Received, Clerk's Office, October 2, 2009
Waste Hauling Landfill, Inc.
c/o Jerry Camfield,
Sr.
2938 Oakmont Drive
Decatur,
IL
62521
Jerry Camfield,
Sr.
2938 Oakmont Drive
Decatur,
IL
62521
2
Electronic Filing - Received, Clerk's Office, October 2, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
Complainant,
vs.
WASTE HAULING,LANDFILL, INC., JERRY
CAMFIELD,
A.
E. STALEY MANUFACTURING
CO., ARCHER DANIELS MIDLAND, INC.,
ARAMARK UNIFORM SERVICES, INC., BELL
SPORTS, INC., BORDEN CHEMICAL CO.,
BRIDGESTONEIFIRESTONE, INC., CLIMATE
CONTROL, INC., CATERPILLAR INC., COMBE
LABORATORIES, INC., GENERAL ELECTRIC
RAILCAR SERVICES
CORPORATION, P
&
H
MANUFACTURING,
INC., TRINITY RAIL
GROUP, INC., TRIPLE S REFINING
CORPORATION, and ZEXEL ILLINOIS, INC.,
Respondents.
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PCB No. 10-9
(Enforcement - Land, Cost
Recovery)
MOTION FOR LEAVE TO REPLY
Pursuant to 35 Ill. Adm. Code 101.500(e), Caterpillar Inc. ("Caterpillar") requests leave
to file the attached Reply to the State's Response to Motion to Dismiss Complaint:
1.
On September 2, 2009, Caterpillar filed its Motion to Dismiss the Complaint. On
September 17, 2009, the People of the State of Illinois ("State") filed its Response to
Caterpillar's Motion to Dismiss Complaint. The State's Response was served on Caterpillar on
September 18,2009.
2.
The State's Response contains misstatements of the applicable law and regulations, and
raises new legal issues not raised in Caterpillar'S Motion that necessitate a reply from Caterpillar.
3.
On September 16,2009, the State filed its First Amended Complaint, which addresses
only the argument set forth in paragraph 1
of Caterpillar's Motion to Dismiss, but which fails to
address the remaining arguments set forth in Caterpillar's Motion. Therefore, because the First
Amended Complaint does not address the remaining grounds for dismissal set forth in
Caterpillar's Motion to Dismiss, Caterpillar concurrently moves that its Motion to Dismiss be
treated as a Motion to Dismiss the First Amended Complaint for the reasons set forth in
paragraphs 2 through 5
of its Motion to Dismiss, and as further set forth in its Memorandum of
Law In Support of Motion to Dismiss.
WHEREFORE, for the reasons set forth above, Caterpillar requests leave to file the
attached Reply to the State's Response to Motion to Dismiss Complaint.
Date: October 2,
2009
Kevin G. Desharnais
Jennifer
A.
Simon
Mayer Brown LLP
71 South Wacker Drive
Chicago, lllinois
60606-4637
(312) 701-8407 (phone)
(312) 706-8117 (fax)
jsimon@mayerbrown.com
CATERPILLAR
INC.
2
Electronic Filing - Received, Clerk's Office, October 2, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
vs.
WASTE HAULING LANDFILL, INC., JERRY
CAMFIELD,
A.
E.
ST ALEY MANUFACTURING
CO., ARCHER DANIELS MIDLAND, INC.,
ARAMARK
UNIFORM SERVICES, INC., BELL
SPORTS, INC., BORDEN CHEMICAL CO.,
BRIDGESTONEIFIRESTONE, INC.,
CLIMATE
CONTROL, INC., CATERPILLAR INC., COMBE
LABORATORIES, INC., GENERAL ELECTRIC
RAILCAR SERVICES
CORPORATION, P
&
H
MANUFACTURING, INC., TRINITY RAIL
GROUP, INC., TRIPLE S REFINING
CORPORATION, and ZEXEL ILLINOIS, INC.,
Respondents.
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PCB No. 10-9
(Enforcement - Land, Cost
Recovery)
REPL Y TO THE STATE'S RESPONSE TO MOTION TO DISMISS COMPLAINT /
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Pursuant to 35 ill. Adm. Code 101.500(e), Caterpillar Inc. ("Caterpillar") submits this
Reply to the State's Response to Motion to Dismiss Complaint. Concurrently, pursuant to 35 Ill.
Adm. Code
101.506, Caterpillar moves that its Motion to Dismiss be treated as a Motion to
Dismiss the First Amended Complaint filed by the
People of the State of Illinois ("State") on
September
16,2009, for the reasons set forth in paragraphs 2 through 5 of its Motion to Dismiss,
and
as further set forth in its Memorandum of Law In Support of Motion to Dismiss.
I
In support
of its Reply and its Motion, Caterpillar states as follows:
I
Caterpillar hereby incorporates by reference its Motion to Dismiss and its Memorandum in Support of Motion to
Dismiss, filed on September 2,2009.
INTRODUCTION
On July 29,2009, the State filed this action with the Board. Caterpillar received service
of the Complaint on August 3, 2009. Caterpillar moved to dismiss the Complaint on September
2,2009. The State filed its First Amended Complaint on September 16,2009, which responds to
the arguments set forth in paragraph 1 of Caterpillar's Motion to Dismiss. Caterpillar
acknowledges that the First Amended Complaint adequately addresses the arguments set forth in
paragraph 1 of its Motion to Dismiss, and, provided the State's Motion to file the First Amended
Complaint is granted, hereby withdraws those grounds for its Motion.
On September 17, 2009,
the State filed its Response to Caterpillar's Motion to Dismiss Complaint. The State's Response
was served on Caterpillar on September 18, 2009.
Caterpillar now timely files its Reply to the State's Response to Motion to Dismiss and
reiterates the following grounds for dismissing the State's Complaint as its basis for dismissing
the State's First Amended Complaint: (1) the Illinois Environmental Protection Agency
("Agency") failed to follow the notification procedures and satisfy the other pre-suit
requirements of Section 31 of the Act; (2) the State failed to plead with the level of specificity
required
by 35 TIL Adm. Code Section 103.204 and Illinois' fact-pleading standard; (3) the State
seeks to impose a greater liability upon Caterpillar than permitted by Illinois' Proportionate
Share Liability Rule at 415 ILCS 5/58.9; and (4) the State has not alleged facts sufficient to
support its claim for treble damages under paragraph C
of the "Prayer for Relief' section of the
Complaint.
As set forth below, the State's Response fails to address several
of Caterpillar's
arguments, misinterpreted others, and incorrectly applies certain statutory and regulatory
provisions.
2
ARGUMENT
I.
The Agency Failed to Follow the Notification and Other Pre-Suit Procedures of
Section 31 of the Act.
The State responds to Caterpillar's 415 ILCS
5/31
notice arguments by erroneously
stating that Section
31 does not apply to this matter.
See
State's Response,
<j[
C( 4-5). The State
argues that Section
31 applies only in the instance of a "violation" of the Act.
[d.
However,
here, the State
is alleging that Caterpillar violated the Act by not performing the remedial work
set forth in the Agency's Section 4(
q) letter.
See
First Amended Complaint, "Prayer for Relief'
<j[
C. Because of this alleged violation, the State is seeking treble damages pursuant to 415 ILCS
5/22.2(k). See id.
Accordingly, as the State has alleged a violation of the Act, Section 31 does
apply to the State's cause
of action.
Moreover, the Board itself has cited Section
31 as applicable to this matter.
See
Board's
Order accepting the State's Complaint for hearing, August 6,2009, p. 1 ("Under the
Environmental
Protection Act (Act) (415 ILCS 5 (2008», the Attorney General and the State's
Attorneys may bring actions before the Board to enforce lllinois' environmental requirements on
behalf
of the People.
See
415 ILCS
5/31 (2008)").
Section 31 of the Act outlines specific notification procedures the Agency must follow
before referring a matter to the Attorney General for enforcement. The Agency failed to follow
these procedures. Therefore, it was never authorized to refer this matter to the Attorney General.
Because the preconditions for filing were never met, this matter must be dismissed.
Alternatively, because the Agency failed to follow the procedures set forth in Section
31
of the Act, the Agency was not authorized to seek enforcement of this matter by the Attorney
General, and the Attorney General likewise was not authorized to bring this matter on behalf of
3
Electronic Filing - Received, Clerk's Office, October 2, 2009
the Agency. Therefore, the portion of the Complaint whereby the Attorney General seeks to
bring this action at the request
of the Agency must be stricken, and the Agency must not be
permitted to participate in this proceeding directly or indirectly until it has followed the
procedures set forth in Section 31.
II.
The State Failed to Plead with the Specificity Required by 35 III. Adm. Code Section
103.204 and Illinois' Fact-Pleading Standard.
The State incorrectly argues that the 35 Ill. Adm. Code Section 103.204 fact-pleading
requirements do not apply to this matter, as 35 Ill. Adm. Code Section 103.204 applies only to
enforcement proceedings.
See
State's Response, <J[ C(3). The State fails to address Caterpillar's
common law fact-pleading standard arguments.
Initially, we note that, irrespective
of the regulatory applicability of 35 Ill. Adm. Code
Section 103.204, as the Board has recognized, Illinois common law independently requires
"the
pleader to set out the ultimate facts which support his cause of action.'"
United City of Yorkville
v. Hammon Farms,
PCB No. 08-96 (Citizen's Enforcement -- Land, Air, Water), 2008 Ill. ENV
LEXIS 352, *36-37
(October 16, 2008),
quoting Grist Mill Confections,
PCB 97-174, slip op. at
4. "[L]egal conclusions unsupported by allegations
of specific facts are insufficient."
Id.,
quoting
La
Salle Nat'l Trust,
N.A.
v. Village of Mettawa,
249 Ill. App. 3d 550, 557 (Ill. App. Ct.
2d Dist. 1993). The State's First Amended Complaint fails to meet this fact-pleading standard
and, accordingly, must be dismissed.
However, in addition to the general fact pleading requirements under Illinois law, the
requirements
of 35 Ill. Adm. Code Section 103.204 and the other regulations directed toward
enforcement proceedings do apply to this matter. The very provision the State claims supersedes
Section 103 - the proportionate share regulations at 35 Ill. Adm. Code 741 - explicitly states that
"[t]he Board's procedural rules at 35 Ill. Adm. Code 101 and 103 apply to all proceedings under
4
Electronic Filing - Received, Clerk's Office, October 2, 2009
this Part." 35 Ill. Adm. Code 741.105(b). Only "in the event of a conflict between the rules of
35 Ill. Adm. Code 101 and 103 and this Part," does Part 741 apply to the exclusion of Sections
101 and 103. The State has not identified any conflict that renders 35 Ill. Adm. Code Part 741
incompatible with 35 Ill. Adm. Code
101 and 103, and, indeed, cannot, since no relevant conflict
exists.
In
fact, nowhere does Part 741 even address fact- versus notice-pleading standards.
Those standards are found solely in the more general procedural rules
of 35 Ill. Adm. Code 103.
Without a clear conflict between the two sections, 35 Ill. Adm. Code
103 remains applicable to
this action.
Additionally, despite
the State's misguided attempt to distinguish between "cost
recovery"
and "enforcement" proceedings, this cause of action is best characterized as an
enforcement proceeding that seeks both cost recovery and penalties. As an enforcement
proceeding, 35 Ill. Adm. Code
Part 103 is applicable. This characterization is made evident by
several key facts.
First, the State is seeking an enforcement penalty in addition to cost recovery in its
Amended Complaint, so the State lacks a factual basis for drawing a distinction between cost
recovery and enforcement.
See
First Amended Complaint, "Prayer for Relief," <J[ c. As the State
is alleging that Caterpillar violated the Act by failing to act in accordance with the Agency's 4( q)
letter, and as the State is now seeking to impose a penalty of treble damages, the State is clearly
intending to enforce the Act and its authority through this action.
As such, the State originally properly captioned this matter
as an enforcement action
(see
the State's Notice of Filing and Entry of Appearance (July 30,2009) ("PCB No. 10-9;
Enforcement"», and likewise included with its filing the notice language required to be included
with all enforcement complaints pursuant to 35 Ill. Adm. Code 103.204(f)
(see
Notice of Filing,
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Electronic Filing - Received, Clerk's Office, October 2, 2009
July 30, 2009). That the State changed course and captioned its Complaint and its First
Amended Complaint as cost recovery actions does not mask the State's clear intent or change the
nature of this proceeding. "Cost Recovery" is not even a valid caption under the Board's
procedural rules
(see
35 Ill. Adm. Code 101, Appendix A), nor does it appear that the Board has
ever captioned a proceeding solely as
"Cost Recovery." Typically, the Board captions cost
recovery proceedings as a subset
of enforcement proceedings.
See, e.g., The Village of Lombard
v. Bill's Auto Center,
PCB No. 04-213 (Citizens Enforcement - Cost Recovery), 2007 Ill. ENV
LEXIS 216 (June
7,2007);
People of the State of Illinois v. Thomas Gray,
PCB No. 04-106
(Enforcement -- Cost Recovery), 2006 Ill. ENV LEXIS 272 (May 4,2006);
People of the State
of Illinois v. Kenneth Morrison,
PCB No. 00-212 (Enforcement - Cost Recovery), 2001 Ill. ENV
LEXIS 439 (September
20,2001);
People of the State of Illinois v. Dayne Rogers,
PCB No. 00-
127 (Enforcement - Cost Recovery), 2001 Ill. ENV LEXIS 7 (January 4,2001);
People of the
State
of Illinois v. Babson Brothers Company,
PCB No. 00-102 (Enforcement - Cost Recovery),
2000 TIL ENV LEXIS 228 (April 20, 2000).
Indeed, in the Board's Order accepting the Complaint for hearing, the Board likewise
captioned this matter as an enforcement action.
See
Order dated August 6, 2009 ("PCB 10-9;
Enforcement - Land, Cost
Recovery"). In that Order, the Board also cited the enforcement
regulations as being applicable here.
See id.
at p. 1-2 ("Under the Environmental Protection Act
(Act) (415 ILCS 5
(2008)), the Attorney General and the State's Attorneys may bring actions
before the Board to enforce Illinois' environmental requirements on behalf
of the People.
See
415 ILCS 5/31 (2008); 35 TIL Adm. Code 103.");
id.
at p. 2 ("The Board finds that the complaint
meets the content requirements
of the Board's procedural rules and accepts the complaint for
hearing.
See
35 Ill. Adm. Code 103.204(c), (f), 103.212(c).").
6
Moreover, the Board has previously utilized the enforcement regulations in similar
proceedings.
See, e.g., People of the State of Illinois v. Thomas Gray,
PCB No. 04-106
(Enforcement
-- Cost Recovery), 2006 Ill. ENV LEXIS 272, *4 (May 4, 2006);
People of the
State
of Illinois v. Babson Brothers Company,
PCB No. 00-102 (Enforcement - Cost Recovery),
2000 Ill. ENV LEXIS 228, *2 (April 20, 2000);
People v. Bath Incorporated,
PCB No. 05-139
(Enforcement
-- Land, Cost Recovery), 2005 Ill. ENV LEXIS 73 (February 3,2005);
City of
Chicago v. Purex Industries, Inc.,
PCB Nos. 03-55 (Citizens UST Enforcement), 2003 Ill. ENV
LEXIS 659, *4 (2003).
For these reasons, the requirements set forth at 35 Ill. Adm. Code Section 103 are
applicable to this matter. As the State has failed to meet the standard set forth in 35 Ill. Adm.
Code Section 103.204 or in Illinois' fact-pleading requirements, the First Amended Complaint
must be dismissed for failure to plead with sufficient specificity.
III.
Neither the Agency Nor the State May Seek Damages From Caterpillar that
Represent More Than Caterpillar's Proportionate Share of the Liability.
As set forth in Caterpillar's motion, the proportionate share provisions of Section 58.9 of
the Act and the proportionate share regulations at 35 Ill. Adm. Code Part 741 limit Caterpillar's
potential liability at the Waste Hauling Landfill. The Motion further notes that, in bringing its
claim against Caterpillar, the State was required to allege facts sufficient to support a valid claim
under the proportionate share regulations, but failed to do so. The State raises two arguments in
response, neither of which can stand.
A.
Pleading vs. Burden of Proof
The State correctly asserts that it is not obligated to plead a specific percentage of
liability.
See
State's Response,
C)[
B(3). Nevertheless, the State must plead facts sufficient to
support its cause
of action. As Illinois' fact-pleading regulations require, this would include
7
"[t]he dates, location, events, nature, extent, duration, and strength of discharges or emissions
and consequences alleged to constitute violations
of the Act and regulations." 35 Ill. Adm. Code
Section 1
03 .204( c )(2). Those facts form the basis of the State's claim - both generally as to all
the respondents and specifically as to Caterpillar's proportionate share - and so must be set forth
in the Complaint.
"Illinois is a fact-pleading state which requires the pleader to set out the
ultimate facts which support his cause
of action."
United City of Yorkville v. Hammon Farms,
PCB No. 08-96 (Citizen's Enforcement -- Land, Air, Water), 2008 Ill. ENV LEXIS 352, *36-37
(October 16,2008),
quoting Grist Mill Confections,
PCB 97-174, slip op. at 4. "[L]egal
conclusions unsupported by allegations of specific facts are insufficient."
Id., quoting La Salle
Nat'l Trust, N.A.
v.
Village of Mettawa,
249 Ill. App. 3d 550,557 (Ill. App. Ct. 2d Dist. 1993).
In addition, the State must provide
"a concise statement of the relief that the complainant
seeks," as mandated by 35 Ill. Adm. Code Section 103.204. The State has not done this, instead
requesting treble damages generally. With no facts
by which Caterpillar could deduce its share
of the response costs, a general plea for treble damages is far from a concise statement of the
relief sought. Because
of this pleading deficiency, Caterpillar cannot adequately prepare a
defense.
To the extent the State has failed to plead facts specific to Caterpillar because the State
seeks to impose an equal share
of liability on all parties, the State is in violation of the
proportionate share regulations, and the First Amended Complaint must be dismissed. To the
extent the State
is proposing a proportionate share liability corresponding to the parties' degree
of involvement, the State has failed to plead with specificity or to provide a concise statement of
the relief it is seeking. Accordingly, the First Amended Complaint must be dismissed.
8
Electronic Filing - Received, Clerk's Office, October 2, 2009
B.
Permitted Owners
The State correctly notes that permitted owners or operators of facilities are excluded
from the proportionate share regulations.
See
State's Response, <J[ B(5). However, Caterpillar is
not a permitted owner or operator, nor an owner or operator of any kind, with respect to the
Waste Hauling Landfill. Accordingly, regulatory provisions pertaining to permitted owners and
operators are inapplicable to Caterpillar. As the proportionate share regulations do apply to
Caterpillar, the State has failed to plead with adequate specificity such that Caterpillar can
understand the nature
of the State's claim. Because the State has failed to provide a concise
statement of the relief sought against Caterpillar, the First Amended Complaint must be
dismissed. Further, to the extent the State is seeking damages from Caterpillar in excess
of
Caterpillar's proportionate share of liability at the Waste Hauling Landfill, the First Amended
Complaint must likewise be dismissed.
IV.
The State's Claim for Treble Damages Against Caterpillar Must be Dismissed.
In its Response, the State does not address Caterpillar's argument that the Complaint fails
to allege facts supporting a claim for treble damages against Caterpillar. Likewise, in the First
Amended Complaint, the State has not pled any additional facts supporting its claim for treble
damages.
In
sum, the State has never informed Caterpillar of the factual basis for its liability at
this site - not in the Agency's May
13,2002, 4(q) letter; not in the Attorney General's May 4,
2007, letter; and not the Complaint or First Amended Complaint. Therefore, as the State has
again failed to allege sufficient facts to support a claim for treble damages as to Caterpillar,
Paragraph C of the First Amended Complaint under "Prayer for Relief' must be dismissed.
9
CONCLUSION
Accordingly, for the reasons set forth above, the reasons set forth in paragraphs 2 through
5 of its Motion to Dismiss, and the supporting arguments set forth in its Memorandum of Law In
Support
of Motion to Dismiss, Caterpillar moves that the First Amended Complaint be dismissed
in its entirety as to Caterpillar and that the Board grant such further relief as may be just and
proper.
2
In
the alternative, Caterpillar moves that:
(1)
the demand for treble damages in the
operative complaint be stricken; and
(2) the Illinois Environmental Protection Agency be barred
from further direct or indirect participation in these proceedings until it has followed the
procedures set forth in Section 31.
Date:
October 2,2009
Kevin G. Desharnais
Jennifer
A.
Simon
Mayer Brown
LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
(312) 701-8407 (phone)
(312) 706-8117 (fax)
jsimon@mayerbrown.com
CATERPILLAR INC.
Jen¢er~.
Simon
2 Should the Board deny the State's Motion to Amend Complaint, Caterpillar moves that the initial Complaint be
dismissed
in its entirety, and that the Board grant such further relief as may be just and proper.
10
