BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~
PEOPLE OF THE STATE OF ILLINOIS,
CLERI~VSOFFICE
Complainant,
vs
-
JUL 1~32003
STATE OF ILUNOIS
PCB No.
03_19~oI1ut1onControl Board
(Enforcement-Land)
COMMUNITY LANDFILL COMPANY, INC.,
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
to: Mr. Mark La Rose
Mr. Bradley P. Halloran
La Rose & Bosco
Hearing Officer
734 N. Wells Street
Illinois Pollution Control Board
Chicago, IL 60610
100 W. Randolph, Chicago IL
Mr. Charles Heiston
Hinshaw & Culbertson
100 Park Avenue
Rockford IL 61105-1389
NOTICE OF FILING
PLEASE TAKE NOTICE that we have today, July 16, 2003,
filed with the Office of the Clerk of the Illinois Pollution
Control Board, Complainant’s Reply and Motion to Strike
Affirmative Defenses, a copy of which is attached herewith and
served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
ex rel.
LISA MADIGAN
Attorney Gener~.l of the
State of Illiijois
BY:
;STOPHER GRANT
Assistant Attorney General
Environmental Bureau
188 W. Randolph
~
20th
Fir.
Chicago, IL 60601
(312) 814-5388
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~LVJ~D
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK’S OFFICE
Complainant,
)
JUL 1 G 2003
vs.
)
(Enforcem~e~0~01B0~
COMMUNITY LANDFILL COMPANY, INC.,
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
COMPLAINANT’S REPLY AND MOTION TO STRIKE RESPONDENT
CO1~4MtINITY LANDFILL COMPANY’S AFFIRMATIVE DEFENSES
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, pursuant to
Section 101.506 of the Board’s Procedural Rules and Section 2-615
of the Illinois Code of Civil Procedure, now replies to
Respondent COMMUNITY LANDFILL COMPANY, INC.’s Third and Fourth
Affirmative Defenses, and moves for an order striking or
dismissing Respondent’s First and Second Affirmative Defenses. In
support thereof, Complainant states as follows:
1. On April 16, 2003, Complainant filed a one count
complaint against the Respondents, alleging violations of
Sections 21(d) (2)of the Illinois Environmental Protection Act
(“Act”), 415 ILCS 5/21(d) (2) (2002), and 35 Ill. Adm. Code
Sections 811.700(f) and 811.712. Specifically, Complaint alleges
that the Respondents operated a Municipal Solid Waste Landfill
without having first provided appropriate financial assurance, as
I
Co.
V.
Sargent & Lundy, 242 Ill. App. 3d 614, 630, (1st Dist.
1993). Respondents First and Second Affirmative Defenses are
neither legally nor factually sufficient and therefore should be
stricken.
MOTION TO STRIKE
FIRST AND
SECOND AFFIRMATIVE DEFENSES
CLC’S FIRST AND SECOND AFFIRMATIVE DEFENSES
ARE BARRED BY
COLLATERAL ESTOPPEL
4. CLC’s First and Second Affirmative Defenses state:
1. The complaint is barred by the doctrines of laches
and estoppel since the Agency accepted the
Frontier Bonds and issued a significant
modification permit on August 4, 2000 knowing that
Frontier had been delisted.
2. The Frontier Insurance bonds complied with all
applicable regulations at the time of their
issuance, and were accepted by the Agency.
5. The issues raised by Respondent have already been
adjudicated between the parties, on the merits.
Community
Landfill Company et al v. Illinois Environmental Protection
Agency,
PCB 01-170 (PCB 2001)
.
In PCB 01-170, Respondents
appealed Illinois EPA’s denial of a supplemental permit for the
Morris Community Landfill, the site which is the subject matter
of the complaint in the instant case. Illinois EPA’s denial, in
part, was based on the same Frontier surety bonds which form the
basis of the instant action. In the 2001 case, Respondents
raised these same two issues in defense: i.e. that the State was
barred from contesting their validity on the basis of laches and
3
Reclamation District Retirement Fund,
298 Ill. App. 3d 66 (1st
Dist. 1998). Collateral estoppel applies where the following is
present:
(1) the issue decided in the prior adjudication is
identical with the one presented in the instant matter;
(2) there was a final judgment on the merits in the prior
adjudication; and
(3) the party against whom estoppel is asserted was a party
to prior adjudication.
People v. ESG Watts,~
PCB 96-181 and 97-210, slip op. at
2-3,
citing
Talarico v. Dunlap,
177 Ill. 2d 185, 191 (1997)
8.
Respondent’s laches and equitable estoppel arguments
are identical to those rejected in the prior case. PCB 01-170,
slip op. at 11; aff’d 331 Ill. App. 3d, at 1062. The decision
was a final determination, on the merits, and resolved the
identical issue between the same parties as in the instant case.
Respondent is therefore precluded on the basis of Collateral
Estoppel from seeking relitigation of this issue. Respondent’s
First Affirmative Defense is therefore legally insufficient, and
should be stricken.
9. Similarly, the issue in Respondent’s Second Affirmative
Defense, i.e. the claimed validity of the financial assurance
submitted, was also rejected, on the merits, in the prior case.
PCB 01-170, slip op. at 10; aff’d 331 Ill. App. 3d, at 1061. The
Board, affirmed by the Appellate Court, found that the bonds
submitted by Respondent did NOT comply with applicable
5
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board issue an order in favor of
Complainant and against Respondent COMMUNITY LANDFILL
COMPANY,
INC.:
a. striking Respondent’s First and Second Affirmative
Defenses; and
b. granting such other relief as the Board deems
appropriate and just.
RESPECTFULLY SUBMITTED:
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW
J.
DUNN,
Chief
Environmental En~’orcement/Asbestos
Liti~ationDivis~ton
BY:
n
\
/ ~
CftRISTOPHER GRANT
E~rironmental Bureau
Assistant Attorney General
188 West Randolph Street,
20th
Floor
• Chicago, IL 60601
(312) 814-5388
7
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
vs.
)
PCB No. 03-191
(Enforcement-Land)
COMMUNITY LANDFILL COMPANY, INC.,
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
CERTIFICATE OF SERVICE
I, CHRISTOPHER
GRANT~.
an attorney, do certify that I caused
to be served this 16th day of July, 2003, the foregoing Reply and
Motion to Strike Affirmative Defenses, and Notice of Filing, upon
the persons listed on said Notice by placing same in an envelope
bearing sufficient postage with the United States Postal Service
located at 100 W. Randolph, Chicago Illinois.
CHRISTOPHER
GRANT