Charles
. F.
Helsten
-
Hinshaw.&.Culbertson
LLP
PRockford,
100
.O .
Park
Box
Avenue1389IL
61105-1389
815-490-4900
ORIGINAL
1E E
VE°
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB 2 3 2001
NOTICE OF FILING
TO
:
All counsel of Record (see attached Service List)
Please take notice that on February 23, 2007
. the undersigned filed with the Illinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Response to People
of the State of Illinois' Motion to Set Hearing Date or Alternatively for Severance of Claims
.
Dated
:
y /t3 /b?
Respectfully submitted,
On behalf
This document utilized 100% recycled paper products
.
7O4y20970 806289
PEOPLE OF THE STATE OF ILLINOIS„
Pollution Control Board
Complainant,
v
.
)
PCB No
. 03-191
)
COiv MJNTTY LANDFILL COMPANY, INC
., )
an Illinois Corporation, and CITY OF MORRIS,
)
an Illinois Municipal Corporation„
Respondents .
)
BEFORE' THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, ex
rel . LISA MADIGAN, Attorney General of the
State of Illinois,
Plaintiff,
CO TY LANDFILL CO., an Illinois
Corporation, and the CITY OF MORRIS, an
Illinois Municipal Corporation,
Defendants
.
RESPONSE TO PEOPLE OF THE STATE OF ILLINOIS' MOTION TO
SET HEARING DATE OR ALTERNATIVELY FOR SEVERANCE OF
CLAIMS
NOW COMES the CITY OF MORRIS, an Illinois Municipal Corporation, by and
through its attorneys, HINSHAW & CULBERTSON LLP, and for its Response to
Complainant's Motion to Set Hearing Date or Alternatively for Severance of Claims, states as
follows
:
INTRODUCTION
The State of Illinois has brought a Motion to Set Hearing Date or Alternatively for
Severance of Claims which raises issues regarding the hearing date and the necessity for all
patties to participate m the "remedy" hearing portion of this action
. However, these issues have
already been decided by the Illinois Pollution Control Board in its Order of October 3 2006 in
response to Respondent's, Community Landfill Co
., Inc
. ("CLC"), previous Motion to Cancel
the Hearing. The State of Illinois has merely reasserted that Edward Pruim's testimony is not
necessary for the hearing because he is merely a shareholder and officer and his brother, who is
also a shareholder and officer, can testify as to all matters, but offers no new grounds in support
of its Motion over and above those it previously raided this past Fall
. Alternatively, the State
argues that the hearing as it pertains to the City of Morns ("Moms") and CLC should be severed
PCB No . 03-191
(Enforcement-Land)
Receive CLERK'S OF~FIC
FEe 2 3 2007
Pollution
STATE-OF
Control
ILLINQI
Board--
--
. . .-
70517034v
1
806299
so that the State can proceed against Morris regardless of Edward Pruim's physical condition
.
Whether or not Edward Pnum's presence at the hearing is necessary is the exact
same
issue that
was raised at the time the Motion to Cancel Hearing was argued, and the necessity of his
presence at that hearing has, again, already been decided by the Board
. In accordance with the
Board's Order of October
;,
2006, the Motion to Set a Hearing Date should be denied
.
The issue of whether or not the claims can be severed has also been previously addressed
in Morris's Response to
both CLC's
Motion to Cancel Hearing and the State's Response to
CLC's Motion to Cancel Hearing . The State's assertion that the Board's Order of June 1, 2006
held that each Respondent ,vas responsible for the closure and post-closure financial assurances
is simply incorrect
. A review of the Board's June 1, 2006 Order reveals that, "As concerns the
Board's finding of violations against both Respondents, the Board's procedural rules require the
"owner or
operator" to provide financial assurance
." The Board further stated, `Under the
Illinois codification scheme, the use of "or" involves either or both parties to meet the
requirements
. The Board is not allowed to use "and/or" in drafting rule language
." (See June 1,
2006 Order)
The determination of whether both or one Respondent shall be liable for any
remedy crafted by the Board is yet
to be determined .
In that Order, the Board further stated that the parties have not yet analyzed the 33(c) or
42(h) factors regarding an appropriate remedy, including civil penalty, if any, in this proceeding,
This Board cannot allow the severance of claims due to the fact that the factors set forth in 33(c)
and 42(h) need to be examined with both parties present in order to determine whether or not
each Respondent is held liable for a remedy For the reasons set forth below, Morris asserts the
State's Motion to Set Hearing Date or Alternatively for the Severance of Claims must be denied
2
70511054v1B0 E239 "
in accordance with the Board's previous rulings as well as the intent under the Illinois
Environmental Protection Act .
ARGUMENT
THE NECESSITY OF EDWARD PRUZMTS ATTENDANCE AT HEARING HAS
ALREADY BEEN DECIDED BY THE BOARD
The Board has already held in its October 3, 2006 Order
:
"On October 2, 2006, Morris filed a witness list pursuant to the August 17, 2006
Hearing . Officer Order . Edward Pruim is listed as one of the witnesses
. Finally,
Morris represents that the preliminary closure activities have been initiated at the
site and represents, as
reflected
in the attached deposition of expert witness Devin
Moose, that based upon the current status and activities of the site, no eminent or
substantial threat to human health and environment is posted by the site in
question."
The Board further ordered
:
"After reviewing the Motion to Cancel, the respective Responses and taking the
oral arguments into consideration, I find good cause to grant CLC's Motion to
Cancel the Hearing scheduled for October 24, 25, 26 and 27, 2006 . Due to the
issues that need to be addressed at hearing on the issue of remedy, it appears
imperative that Edward Pruirn, as a financial officer of
CLC, be present at the
hearing and available to testify." (emphasis added)
The necessity for Edward Pruim to be present and available to testify has not changed
from October 3, 2006 through the filing off the State's Motion
. In fact, the State's Motion is
premature after reviewing the Board's Order
. In the October' 3, 2006 Order, the board noted
Edward Pruim's physicians recommended that Edward Pruim's physical condition be reviewed
again in March of 2007, to ascertain whether he can partake in :a hearing
. (See October 3, 2006
Illinois Pollution Control Board Order
.) While the State has complained that the hearing is
continued indefinitely, the State has deliberately chosen to ignore the time frame previously set
forth by Mr
. Pruim's physicians, and, in turn, specifically noted by the Board in its order .
Therefore, in addition to the State's mere reassertion of arguments that were already heard and
3
70517084v1 906289
ntled on by the Board at the tune the Motion to Cancel Nearing was considered, they also are
premature in light of the time constructs set forth in the Board's October 3, 2006 Order
.
As previously asserted by Morris, based upon the City's review of other depositions and
other testimony given by the Pniim brothers in other related matters, it fears that if only one
corporate representative
(i.e.,
Robert Pruim) is called in this matter that, that corporate
representative will simply demurrer and defer to Imowledge possessed by Edward Pruim
.
In
turn, since Edward Pruim was the Treasurer and Chief Financial Officer of the corporation, and
since closure and post-closure matters by their very essence relate to financial issues, the City
submits that it is absolutely essential that it be allowed to question Edward Pruim in detail as to
why the parties found themselves in the present situation . This Honorable Board has already
found that it is
"essential" for Mr. Pruim to be present at the hearing . The State's Motion seeks
to set a hearing which would prejudice the City of Morris, and prevent Morris from receiving the
benefit of presenting all facts and evidence necessary for this Board to apply the individual
circumstances to the factors set forth in 33(c) and 42(h) before determining which Respondent is
responsible
. The State's Motion, if granted, would severely prejudice the City of Morris by
requiring Morris to proceed without the Benefit of an identified witness whose presence this
Board has already expressly held is essential at the hearing
in
question. As Edward Pmiin's
attendance at that hearing is essential, not only for the defense to be asserted by CLC, but also so
that the appropriate apportionment of remedy responsibility can be made between the parties, the
State's Motion must be denied .
MORRIS CANNOT PRESENT ALL RELEVANT EVIDENCE AT I KE HEARING
WITHOUT THE PRESENCE OF CLC AND THEREFOR THE STATE'S MOTION FOR
SEVERANCE MUST BE DENIED
The State asserts in its Motion to Sever in bald, conclusory and unsubstantiated fashion
that the City of Moms cannot legitimately claim that Edward Purim's testimony is necessary for
4
70W17084vt ~06289
a fair hearing on the remedy for its own violation_ The State then avain incorrectly asserts that
the Board's earlier finding was that the City of Morris and CLC were each required to insure that _
the closure and post-closure financial assurance was maintained for the subject landfill
. Again, a
.
review of the Board's June 1, 2006 Order reveals the Board has held that the owner
or operator
can be held liable for financial assurance requirement
; and that, it is now necessary to examine
the 33(c) and 42(h) factors to determine the liability of the respective Respondents for any
remedy that is ordered . The State correctly points out in its Motion to Sever that the CLC and
Morris are adverse . What the State continues to deliberately ignore is the Morris' position that it
is essentially a putative, ancillary Respondent in this matter, essentially caught in a "crossfire"
between the Complainant. State of Alinois, and the Respondent', Community Landfill Co ., Inc .
(the entity which, even by this Honorable Board's admission at page 14 of its February 16, 2006
interim Order, conducted the actual day-to-day waste disposal activities at the facility in
question.)
. The City cannot receive a fair hearing if it is not afforded the opportunity to examine
the party that has already been determined to have conducted', the day-to-day operations
. To
sever the claims against the respective Respondent would prejudice the City of Moms by
eliminating the opportunity to illustrate to the Board which responsibilities were placed upon
CLC and which, if any, responsibilities were maintained by the City of Morris
. This
apportionment of operations is essential under the 33(c) and 42(h) factors to determine what
remedies, if any, the City of Morris should be responsible
.
As the financial assurance obligations being sought by the State will likely reach into the
millions of dollars, it is imperative that the City o f Morris be afforded the opportunity to present
all relevant evidence and testimony at its hearing
. To sever the claims and force the City of
Morris to proceed to hearing prior to the availability of Mr
. Edward Pruim, which this Board has
5
705170P 4v1 906789
already determined is essential for the hearing, would be to deprive the City of Morris the
opportunity
This
to
Honorable
present all
Board
relevant
has consistently
evidence and
held
testimony
in hearings
at the .
heatingsuch
as this that for its own
benefit (as well as the benefit of each party to such an action), a, complete and full hearing on all
relevant evidence should be conducted, and that the needs of all parties for a complete and full
hearing should be satisfied . The basic precepts of fundamental fairness established by this Board
require nothing less .
WHEREFORE, the City of Morris respectfully requests that the State's Motion to Set
matter for Hearing or Alternatively for the Severance of Claims be denied .
Dated :
Z
4,
('DV
CITY OF MORRIS, an Illinois Municipal
Corporation, Defendant
Charles F
. Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
P .O
. Box 1389
Rockford, IL 61105-1389
Phone
: 815-490-4900
Fax: 8L5-490-4901
6
Respectfully submitted,
By: H b `-W
& CULB TSON LLP
70517084v1 806289
RECEIVED
CLERK'S OFFICE
~~ L
AFFIDAVIT OF SERVICE
STATE
FEB
OF
2 3
ILLINOIS
2007
-
he undersigned, pursuant to the provisions of Section 1-109 of the Illinois Cff@Y4Tiq4ntroI
Board
Procedure,
certifies that
hereby
on February
under penalty
23, 2007of ; she
perjury
caused
under
to be
the
served
lawsa ofcopy the
of
United
the foregoing
States
uponof
;
America
:
Via Facsimile and U .S. Regular Mail
Mr
. Christopher Grant
Assistant Attorney General
Environmental Bureau
188 W
. Randolph St ., 20th FL
Chicago, II. 60601
Ms . Dorothy nun,
Clerk
Pollution Control Board
100 W
. Randolph, Suite 11-500
Chicago, IL 60601
Via Facsimile and U .S
. Regular Mail
Mark LaRose
Clarissa Grayson
LaRose & Bosco, Ltd.
200 N. LaSalle, Suite 2810
Chicago, IL 60601
N is Facsimile and U .S . Regular Mail
Bradley Flallor n
Hearing Officer
Pollution Control Board
100 W. Randolph . Suite 11
Chicago, IL 60601
A copy of the
same was enclosed in an envelope in the United States mail at Rockford, Illinois,
proper postage prepaid, before the hour of 5
:00 p .m.,
addressed as above .
HINSHAW & CULBERTSON
100 Park Avenue
P.O
. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
7041,2We1 BO^'769
HINSHAW
&'CU!L8ERTSO'N LLP
HARD-COPY
: Original Will Not Be Sent
NA L
ATTORNETS AT LAW
1
.00 Park Avenue
F .O . Tox 1389
Rockford, IL61105-1389
if you do not receive the number of pages listed above, please call 515-1904900
. The documents that accompany this facsimile contain
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. Thank you .
ilinshaw & Culbertson LI-P is an Illinois registered limited liability
partnership that has elected to be governed by the nlinois Uniform
Partnership Act (1997)_
7 815-s0-490o
F 815-490-4901
www .ll
wiaw .wm
ChRKEI VE
D
February 23, 2007
FACSIMILE TRANSMISSION
FEB 2 3 2007
Pollutionf
OControl Board
TO :
COMPANY :
FAX NO . ;
Chris Grant
Attorney General's Office
312-'814-2347
PHONE NO . :
Clarrisa Grayson
LaRose & Bosco, Ltd
312-'642-0434
Brad Halloran
Pollution Control Board
312=814-3669
312-814-8917
FROM;
Charles F . Helsten
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5263
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806289.
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