BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    PEOPLE
    OF
    THE STATE
    OF ILLINOIS,
    )
    Complainant,
    )
    0CT2
    820
    vs.
    )
    PCB
    No. 10-9
    )
    (Cost Recovery)
    p7TEOP
    ILLINOIS
    WASTE
    HAULING
    LANDFILL,
    INC., et
    al.,
    )
    Control
    Board
    Respondents.
    )
    NOTICE
    OF
    FILING
    To:
    ARAMARK
    UNIFORM
    SERVICES,
    INC.
    Jennifer Nijman
    Nijman
    Franzettl
    LLP
    10
    South
    LaSalle
    St., Suite 3600
    Chicago,
    IL 60603
    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
    131 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.
    Lee
    Cunningham
    4666 Faries
    Parkway
    Decatur,
    IL 62526
    CATERPIILLAR,
    INC.
    do
    Kevin
    Deshamais
    and Jennifer
    Simon
    Mayer Brown
    LLP
    71
    South
    Wacker
    Drive
    Chicago,
    IL
    60606-463
    7
    CLIMATE
    CONTROL,
    INC.
    do Edward
    Q.
    Costa
    1
    Samuels,
    Miller, Schroeder,
    Jackson
    &
    Sly
    P.O. BOX
    1400
    225 N. Water
    Street,
    Suite 301
    Decatur IL 62525
    1400
    COMBE LABORATORIES,
    INC.
    c/o Theresa Duckett
    Locke
    Loid Bissell
    &
    Liddell
    111
    5.
    Wacker
    Drive
    Chicago, IL
    60606
    P
    &
    H
    MANUFACTURING,
    INC.
    do Edward
    Dwyer
    Hodge Dwyer &
    Driver
    3150
    Roland Avenue
    P.O.
    Box
    5776
    Springfield,
    IL
    62705-5776
    GENERAL
    ELECTRiC
    RAILCAR SERVICES
    CORPORATION
    Kirk
    R.
    McFarlane,
    Counsel
    640 Freedom
    Business
    Center
    King of Prussia, PA 19406
    TRINITY RAIL GROUP,
    INC.
    Kristen
    Parker, Michael Dolan
    Jones
    Day
    77 West Wacker
    Drive, Suite 3500
    Chicago, IL 60601-1692
    TRIPLE
    S
    REFINING
    CORPORATION
    David
    DeCelles,
    Jeffrey
    Zeiger, Jeffrey
    Freeman
    Kirkland
    & Ellis
    200 East Randolph
    Drive
    Chicago,
    IL 60601
    PLEASE
    TAKE
    NOTICE that on this date
    I mailed for filing with
    the Clerk
    of the Pollution
    Control
    Board of
    the State of
    Illinois,
    a
    COMPLAINANT’S
    RESPONSE
    TO
    MOTION BY CATERPILLAR,
    INC.
    FOR
    LEAVE TO
    REPLY, a
    copy
    of
    which is
    attached
    hereto
    and herewith served upon
    you.
    Respectfully submitted,
    PEOPLE
    OF THE
    STATE OF
    ILLINOIS
    LISA MADIGAN,
    Attorney
    General
    of the
    State
    of
    Illinois
    500
    South Second
    Street
    Springfield,
    Illinois
    62706
    217/782-9031
    Dated:
    October 23, 2009
    MATTHEW
    J.
    DLTNTh4,
    Chief
    Environmental Enforcement/Asbestos
    Litigation
    Division
    BY:
    JAMES L.
    MORGAN
    Sr.
    Assistant Attorne
    eneral
    Environmental
    Bureau
    2
    CERTIFICATE
    OF SERVICE
    I hereby certify
    that I did on the
    23
    rd
    day of October, 2009, send
    by
    First Class Mail, with
    postage
    thereon
    fully prepaid,
    a true and correct
    copy
    of
    the instruments entitled Notice
    of
    Filing,
    Complainant’s
    Response
    to Motion Caterpillar,
    Inc. For Leave to
    Reply
    TO:
    ARAMARK
    UISIIFORM
    SERVICES, INC.
    Jennifer
    Nijman
    Nijman Franzettl LLP
    10 South LaSalle
    St., Suite 3600
    Chicago,
    IL 60603
    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.
    c/o
    Jeryl
    Olson, James Curtis
    and
    Elizabeth Leifel Ash
    Seyfarth
    Shaw
    131 South Dearborn St., Suite
    2400
    Chicago, IL 60603
    BORDEN CHEMICAL CO.
    c/o Matthew Larson
    Shook Hardy
    &
    Bacon
    2555 Grand Boulevard
    Kansas City, MO 64108
    ARCHER DANIELS MIDLAND, INC.
    do
    Lee
    Cunningham, Corporate Environmental Counsel
    4666 Faries
    Parkway
    Decatur, IL 62526
    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
    Sarnuels, Miller,
    Schroeder,
    Jackson &
    Sly
    3
    P.O. BOX
    1400
    225 N. Water Street,
    Suite 301
    Decatur,
    IL 62525-1400
    COMBE
    LABORATORIES,
    INC.
    do Theresa
    Duckett
    Locke, Lord Bissell
    & Liddell
    111
    5. Wacker Drive
    Chicago,
    IL 60606
    P
    &
    H
    MANUFACTURING,
    INC.
    do Edward
    Dwyer
    Hodge Dwyer
    & Driver
    3150 Roland Avenue
    P.O. Box
    5776
    Springfield, IL
    62705-5 776
    TRIPLE
    S REFINING
    CORPORATION
    David DeCelles,
    Jeffrey Zeiger,
    Jeffrey Freeman
    Kirkland & Ellis
    200 East
    Randolph Drive
    Chicago, IL 60601
    GENERAL
    ELECTRIC
    RAILCAR
    SERVICES
    CORPORATION
    Kirk
    R. McFarlane,
    Counsel
    640 Freedom
    Business Center
    King
    of
    Prussia,
    PA 19406
    TRINITY RAIL
    GROUP, INC.
    Kristen
    Parker, Michael
    Dolan
    Jones Day
    77
    West Wacker Drive,
    Suite 3500
    Chicago, IL
    60601-1692
    Carol Webb,
    Esq.
    Hearing Officer
    IPCB
    1021 North
    Grand Avenue
    East
    P.O. Box
    19274
    Springfield,
    IL 62794-9274
    Service is
    currently unavailable for:
    WASTE
    HAULING
    LANDFILL, INC.,
    JERRY CAMFIELD,
    SR, BRIDGESTONE
    FIRESTONE,
    INC.
    ZEXEL
    ILLINOIS, INC
    and
    the
    original
    and ten
    copies
    were sent
    to:
    John T
    Therriault
    Illinois
    Pollution
    Control Board
    James
    R.
    Thompson Center
    4
    100
    W.
    Randolph, Suite 11-500
    Chicago, IL 60601
    Jarnes L.
    Morgan
    Assistant Attorney
    G
    Environmental Bureau/Springfield
    500 South
    Second Street
    Springfield,
    IL 62706
    5
    BEFORE
    THE ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    PEOPLE OF THE
    STATE OF
    ILLINOIS,
    )
    OCT
    28
    2009
    ST4
    Complainant,
    )
    OI(LJtj
    vs.
    )
    PCB No. 10-9
    )
    (Cost Recovery)
    WASTE HAULING
    LANDFILL, INC.,
    et
    al.,
    )
    Respondents.
    )
    COMPLAINANT’S RESPONSE
    TO
    MOTION BY
    CATERPILLAR, INC.,
    FOR LEAVE TO REPLY
    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, Inc., for leave
    to
    reply
    to the
    Complainant’s
    Response to Motion to Dismiss Complaint. As established below,
    that motion should
    be
    denied
    since the
    reply constitutes
    a
    thinly veiled attempt
    to
    rewrite the original
    motion to dismiss.
    A.
    Section 58.9(a)(1) of the Act
    does
    not bar this action.
    1.
    After having the legs cut out
    from
    its assertion that Section 58.9(a)(1) of the Act, 415 ILCS
    5/58.9(a)(1),
    requires dismissal of the Complaint
    by
    the Board’s ruling in Cole Taylor Bank
    v.
    Rowe
    Industries, eta!., PCB
    01-173 slip
    op. at 4
    (June 2, 2002). 2002
    WL 1298771,
    Caterpillar’s
    latest pleading
    seeks to recast its motion to
    dismiss
    as
    merely
    a
    challenge
    to
    the
    sufficiency of the pleading in the complaint
    and ignores the plain language of 35
    Ill
    .Adm .Code 741 .205 that the complaint need not allege
    a
    requirement
    “a
    specific alleged percentage of
    liability”
    to state a claim.
    2.
    The specific percentage of liability determination follows a determination
    of
    liability. The
    Complaint
    sufficiently pleads the “ultimate facts” necessary to
    show liability:are
    1)
    Caterpillar is within
    a
    class of persons potentially
    liable;
    2)
    There has
    been a
    release or releases of hazardous
    substances or threatened release of
    hazardous substances;
    3)
    Illinois EPA has incurred costs in response thereto;
    and
    4)
    Caterpillar did not perform the work requested
    by the
    4(q)
    notice
    issued
    by
    Illinois EPA.
    1
    Thus
    the complaint is
    sufficient to seek recovery
    of response
    costs.
    B..
    The Complaint properly
    pled
    a claim for treble damages.
    1
    AstheFourthDistiictAppellateCourtheld
    inQuzncyv
    Carison 163
    III App 3d
    1049,
    1053
    treble damages
    may
    be avoided if
    the
    “responsible
    party
    can
    establish that he
    acted with ‘sufficient
    cause”
    when it refused
    to
    perform work
    requested by a 4(q) notice.
    2.
    Thus,
    the reasons why
    a
    responsible party
    chose
    not
    to
    perform the
    work
    requested
    by
    the
    4(q)
    notice must be pled as
    an affirmative defense
    and not as an
    element
    of the Complaint.
    C.
    Provisions
    of
    the Act and
    Regulations
    applicable
    to
    “violations”
    do
    not apply
    to cost
    recovery
    proceedings.
    1.
    Caterpillar’s
    latest pleading goes
    to
    great length
    in reciting the
    content of captions
    but
    ignores
    the
    substance
    ofthe Complaint and
    the
    law. The
    General Assembly
    and the Pollution
    Control
    Board
    have
    recognized
    that
    cost
    recovery actions
    are markedly different
    from
    proceedings
    to address
    violations
    of
    the Act
    and
    regulations. Section
    22.2(1) provides
    that the “costs
    and
    damages provided
    for in
    this Section
    may
    be
    imposed
    by
    the
    Board
    in an
    action brought
    before
    the Board in
    accordance
    with Title VIII
    of
    this
    Act,
    except that
    Section 33(c)
    of this Act
    shall not
    apply.”
    2.
    Title
    VIII includes Section
    3
    1
    . 1
    of the Act
    provides
    for
    administrative
    citations.
    Based
    upon
    the
    plain
    language
    of that
    provision,
    it does
    not apply to
    recovery of costs and
    damages under
    Section 22.2.
    Similarly, Section
    33(c)
    requires “consideration
    of all
    the facts and
    circumstances
    bearing upon the
    reasonableness
    of the
    emissions,
    discharges, or
    deposits involved
    * *
    “
    Since
    “emissions
    and discharges”
    are
    each
    activities
    included
    within the definition
    of “release” that
    provision could
    have
    been
    construed to
    apply to
    recovery of
    costs
    and damages
    under
    Section
    22.2 but was
    specifically excluded
    from applying
    by
    the General
    Assembly.
    3.
    Section 31
    specifically limits
    its
    applicability
    to
    “alleged
    violations.”
    Expanding
    its
    coverage to
    matters not
    dependent upon a
    finding of violation
    contravenes
    the
    plain
    language
    of that statute.
    2
    D.
    Conclusion
    WHEREFORE, Complainant prays that
    the motion
    of
    the
    Respondent, Caterpillar, Inc., for
    leave to
    file
    a
    response and its additional arguments
    challenging
    the
    complaint
    be
    denied.
    Respectfully submitted,
    PEOPLE
    OF
    THE
    STATE OF ILLINOIS
    LISA MADIGAN,
    Attorney General of
    the
    State of Illinois
    MATTHEW J.
    DU1l, Chief
    Environmental
    Enforcement/Asbestos
    Litigatio Division
    JAMES
    L.
    MORGAN
    Sr. Assistant Attorn
    General
    Environmental
    Bureau
    500
    South Second
    Street
    Springfield, Illinois
    62706
    217/782-9031
    Dated: October
    23, 2009
    3

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