ILLINOIS POLLUTION CONTROL BOARD
    PEOPLE OF THE STATE OF ILLINOIS,
    PCB 03-191
    (Enforcement - Land)
    Complainant,
    Respondents.
    v.
    )
    )
    )
    ~
    )
    COMMUNITY LANDFILL COMPANY, INC., )
    and CITY OF MORRIS, an lllinois Municipal
    )
    Corporation"
    )
    )
    )
    NOTICE OF FILING
    TO: SEE ATTACHED SERVICE LIST
    PLEASE TAKE NOTICE that on September 10, 2007. we electronically filed
    with the
    Clerk
    of the Illinois Pollution Control Board, City's Motion for Leave to File a Reply to the
    State'sResponse Opposing the Motion for Leave to File Amended Affitmative Defenses, a copy
    ofwhich is attached hereto and hereby served upon you.
    Dated:
    September 10, 2007
    Respectfully submitted.
    On behalf
    ofthe CITY OF MORRIS
    lsi
    Charles F. Helsten
    One of Its Attorneys
    Charles
    F. Heisten
    Hinshaw
    & Culbertson LLP
    100 Park Avenue
    P.O. Box 1389
    Rockford, IL 61105-1389
    815-490-4900
    70535478vl 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    PCB No. 03-191
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    )
    )
    v.
    )
    )
    COMMUNITY LANDFILL COMPANY, INC., )
    an Illinois Corporation, and the CITY OF
    )
    MORRIS, an Illinois Municipal Corporation,
    )
    )
    Respondents.
    )
    CITY'SMOTION FOR LEAVE TO FILE A REPLY TO THE
    STATE'S RESPONSE OPPOSING THE MOTION FOR LEAVE
    TO FILE AMENDED AFFIRMATIVE DEFENSES
    NOW COMES the Respondent, CITY OF MORRIS, by and tlrrough its attorneys,
    HINSHAW
    &
    CULBERTSON, LLP, and for its Motion for Leave to File a Reply to the State's
    response opposing the Motion for Leave to File Amended Affinnative Defenses, states as
    follows:
    1.
    The City has filed a Motion for Leave to File Amended Affinnative Defenses in
    which it asserts several Affinnative Defenses which directly address the question
    of remedies
    under consideration
    in the upcoming hearing.
    2.
    In
    response
    to
    the City's Motion, the State incorrectly asserts that the City's
    Amended Affinnative Defenses go to liability and not to the question
    of remedies. The City has
    prepared a Reply refuting the State's assertion, and requests leave to file a concise Reply
    clarifying application of the Affinnative Defenses to the upcoming proceedings.
    3.
    The City is filing this Motion for Leave to File and the attached, concise Reply as
    expeditiously as possible, so as not to delay the Board's consideration
    of pending matters in this
    case.
    70536397vl 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    Dated:
    _~'D/D'7
    Respectfully submitted,
    Charles F. Helsten
    Hinshaw
    &
    Culbertson LLP
    100 Park Avenue
    P.O. Box 1389
    Rockford, IL 61105-1389
    815-490-4900
    This document utilized l00,ilo recycled paper products.
    70536397vl 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD
    PEOPLE OF
    THE
    STATE OF ILLINOIS,
    Complainant,
    v.
    COMMUNITY LANDFILL COMPANY, INC., an
    Illinois Corporation, and
    TIIE CITY OF MORRIS,
    an lllinois Municipal Corporation,
    Respondents.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB No. 03-191
    CITY OF MORRIS'SREPLY IN SUPPORT OF ITS MOTION FOR
    LEAVE TO FILE AMENDED AFFIRMATIVE DEFENSES
    NOW COMES the Respondent, CITY OF MORRIS, by and through its attorneys, HlNSHAW
    &
    CULBERTSON, LLP,
    and for its Reply in support of its Motion for Leave to File Amended Affirmative
    Defenses, states as follows:
    1.
    The State has objected to the City's request for leave to file amended Affinnative
    Defenses on the basis that the amended defenses
    are
    inappropriate and/or irrelevant because "[t]he only
    remaining issue is for the
    Board to decide the appropriate relief for the violations." (State's Response in
    Opposition at
    mJ
    1, 3, 5).
    2.
    Although the City respectfully disagrees with
    the Board'sprior decision holding the City
    liable for violating the Act, the City nevertheless respects the
    Board's order, and, accordingly, directs the
    proffered Amended Affirmative Defenses not
    at liability, but, instead, at the factors listed in 415 ILCS
    5/33(c), 42(f),
    and 42(h), which will be used to detennine what remedy, if any, should be imposed against
    the City.
    3.
    Some representative illustrations of the remedies and factors at issue in the upcoming
    hearing which are directly impacted
    by the Amended Affumative Defenses are:
    a. Potential Remedy: Attorney'sFees - 415 ILCS 5/42(f) provides for a potential award
    of attorney's fees, which is prohibited as against the City by the Illinois Tort
    Immunity Act.
    Yang v. City ofChicago
    , 195
    m.2d
    96, 104 (2001).
    70536215vl 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    b. Potential Remedy: Punitive Damages -415 ILCS 5/42(h)(4) authorizes the levying of
    punitive penalties in order to "deter further violations by the respondent and to
    otherwise aid
    in
    enhancing voluntary compliance with this Act by the respondent and
    other persons similarly subject to the Act." The lllinois Tort Immunity Act prohibits
    the assessment
    of punitive damages against a municipality. 745 ILCS 10/2-102.
    c. Factor (h)(2): Attempts to Comply with the Act's Requirements - 415 ILCS 5/42(h)
    provides that among the factors to
    be considered in awarding a remedy are "the
    presence or absence of due diligence on the part of the respondent in
    attempting to
    comply with requirements
    of this Act and regulations
    thereunder."
    ld.
    (emphasis
    added). The City has at
    all
    times acted on the good faith belief that it was not the
    party required under the Act to post financial assurance, thus the Amended
    Mfirmative Defenses expressing the City's position as to liability are entirely
    relevant to a consideration
    of this factor.
    4.
    As illustrated by the exemplars cited above, the amended Affirmative Defenses are
    directly relevant to the Board'sdetermination
    of the appropriate remedy to be imposed against the City, if
    any, at the upcoming hearing.
    5.
    As this Board noted in
    People
    v.
    Sheridan Sand and Gravel,
    PCB 06-177 (January 26,
    2007),
    it
    is the Board's practice to allow amendments to pleadings filed with the Board, except in cases
    where it would prejudice a party.
    See
    also: People
    v.
    The Highlands,
    L.L.c.
    and Murphy's Fann, Inc.,
    PCB 00-104 (May 6,2004).
    6.
    Moreover, the most important consideration in whether to allow a requested amendment
    is whether allowing the amendment furthers the ends
    ofjustice.
    Savage v. Pho,
    312lll. App. 3d 553,556-
    57 (5th Dist. 2000). Any doubts as to whether leave to file
    an amended pleading should be granted should
    be decided in favor of allowing the amendment.
    Id.
    7.
    fu enacting the Illinois Tort Immunity Act, the legislature expressly immunized units of
    local government with respect to punitive judgments and attorney's fee awards, thereby protecting
    2
    7053621Svl 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    taxpayers and govenunent from judgments other than those designed to compensate an injured party for
    an actual injury.
    See e.g. Yang
    v.
    City of Chicago,
    195 ll1.2d 96, 104 (2001). The Tort Immunity Act
    evidences the General Assembly's detennination that such limitations
    on judgments against units of local
    governmentserve the ends
    ofjustice.
    8.
    Finally, the State'sassertion that it will be prejudiced and ''punished''if the Board grants
    leave for the City to
    file its Amended Affinnative Defenses is completely and totally inconsistent with the
    State's simultaneous assertion that the proposed defenses are irrelevant to the issues under consideration
    at the upcoming hearing.
    WHEREFORE, for the reasons set forth above, the City respectfully requests that the Board grant
    Dated:
    Charles
    F. Helsten
    Hinshaw
    &
    Culbertson LLP
    100 Park Avenue
    P.O. Box 1389
    Rockford,
    II.
    61105-1389
    815-490-4900
    tive Defenses.
    This document utilized 1007° recycled paper products.
    7053621Sv1806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    AFFIDAVIT OF SERVICE
    The undersigned, pursuant to the provisions of Section 1-109 of the lllinois Code of Civil
    Procedure, hereby under penalty
    of perjury under the laws of the United States of America,
    certifies that on September 10, 2007. she caused to
    be served a copy ofthe foregoing upon:
    Mr. Christopher Grant
    Mark LaRose
    Assistant Attorney General
    Clarissa Grayson
    Environmental Bureau
    LaRose
    &
    Bosco, Ltd.
    69 W. Washington St., Suite 1800
    200
    N.
    LaSalle, Suite 2810
    Chicago,IL 60602
    Chicago,
    IL
    60601
    Mr. John
    T. Therriault, Assistant Clerk
    Bradley Halloran
    lllinois Pollution Control Board
    Hearing Officer
    100 W. Randolph, Suite 11-500
    Illinois Pollution Control Board
    Chicago, IL 60601
    100
    W. Randolph, Suite 11-500
    (via
    electronic fding)
    Chicago.
    IL
    60601
    Mr. Scott Belt
    Jennifer A. Tomas
    Scott M. Belt
    &
    Associates, P.C.
    Assistant Attorney General
    105 East Main Street
    Environmental Bureau
    Suite 206
    69 W. Washington Street, Suite 1800
    Morris,
    IL
    60450
    Chicago. IL 60602
    Via E-Mail.
    HINSHAW
    &
    CULBERTSON
    100 Park Avenue
    P.O. Box 1389
    Rockford,
    IL 61105-1389
    (815) 490-4900
    70415200v J 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007

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