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.
to: Mr. Mark
La Rose
Mr. Bradley P. Halloran
La Rose & Bosco
Hearing
Officer
200 N. La
Salle Street, #2810
Illinois
Pollution
Chicago,
IL 60601
Control
Board
100 W. Randolph Street
Chicago
IL 60601
Mr. Charles
Helsten
Hinshaw
& Culbertson
100 Park
Avenue
Rockford
IL 61105-1389
NOTICE OF
FILING
PLEASE TAKE NOTICE
that we have
today, October
18, 2005,
filed
with the office
of the Clerk of the
Illinois Pollution
Control Board, by
electronic filing,
Complainant's
Response to
Community
Landfill Company's
Motion to Strike,
a copy of which
is
attached
and herewith
served upon you.
Respectfully
Submitted,
PEOPLE
OF THE STATE
OF ILLINOIS
ex rel.
LISA
MA IGAN
Attorney
Gener1 of the
State of Illi
is
BY:
ISTOPHER GRANT
Asstant
Attorneys
General
Environmental
Bureau
188 W. Randolph St.,
20ot Flr.
Chicago, IL 60601
(312)
814-5388
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
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.
COMPLAINANT'S RESPONSE
TO COMMUNITY LANDFILL COMPANY'S
MOTION TO STRIKE
NOW COMES the Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
through
its attorney, LISA MADIGAN, Attorney General of the
State
of Illinois, and hereby responds to Respondent's,
COMMUNITY
LANDFILL COMPANY'S Motion to Strike Portions of Complainant's
Motion for Summary Judgment ("1CLC Motion"). In
support thereof,
Complainant states as follows:
I.
RESPONDENT CLC'S
MOTION TO STRIKE IS UNTIMELY AND SHOULD BE
DENIED
1.
On July 21, 2005, Complainant filed its Motion for
Summary Judgment ("Complainant's Motion")
.
Fourteen
days later,
Respondent CLC filed its Motion to extend the time
to Respond to
Complainant's
Motion. On August 18, 2005, Hearing Officer
Halloran extended
the Response deadline to September 16, 2005.
At the reguest of Respondent CLC, the parties agreed to once
again extend the Response date to October
3, 2005. The new date
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
was recorded
in Hearing
Officer
Halloran's September
18,
2005
Order.
2.
On October 3,
2005, CLC filed
the instant Motion,
along
with
its Response to
Complainant's
Motion for Summary
Judgment.
Complainant
asserts
that CLC's Motion
is untimely
filed. CLC's
Motion
was required
to be filed within
14 days,
pursuant to
35
Ill. Adm.
Code 101.500,
or potentially,
within
30 days pursuant
to 35 Ill.
Adm. Code 101.506.
Respondent
CLC did not request
an
extension of
time to tile its
Motion to
Strike, and in
his
September 13,
2005 Order,
Hearing Officer
Halloran only
extended
the time for
Respondent to
file responses
and the City
of Morris'
Cross-Motion
for Summary
Judgment.
CLC's Motion is
untimely
filed
and therefore
should
be denied.
II.
COMPLAINANlT
DOES
NOT ALLEGE A
NEW VIOLATION,
AND
DOES NOT
NEED
TO AMENDl ITS
COMPLAINT TO
OBTAIN INTERIM
RELIEF
3.
In its Complaint,
Complainant
alleges that
the
Respondents
conducted
a waste disposal
operation
without adequate
financial
assurance,
and thereby
violated Section
21(d) (2)
of the
Illinois
Environmental
Protection
Act ("Act"),
415 ILCS
5/21(d)
(2) (2004), and
35 Ill. Adm.
Code Sections
811.700(f)
and
811.712.
4.
Without support,
Respondent
CLC claims
that certain
facts
contained in
one of Complainant's
affidavits
must be
alleged
in an amended
complaint. Respondent
refers
to Mark
Retzlaff's testimony
that
the dumping of
waste and other
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
materials
at the Morris
Community
Landfill
had taken
place as
late as
May 18, 2005
[Affidavit
of Mark
Retzlaff,
Complainant's
Motion,
Exhibit
I)
.
CLC
claims that
these facts
must be
alleged
in an amended
complaint.
S. However,
Complainant's
Motion
does
not s~eek
to add any
additional
violations,
or 'missing'
factual allegations.
Thus
Respondent's
citation of
People v.
Petco Petroleum
Group,
PCB 05-
66
(May 19, 2005);
2005 WL
12555250,
is unhelpful.
In that
case,
the Board
granted Complainant's
motion to
amend its
complaint
to
add seven
additional
counts,
and make
corrections
in existing
counts.
6. Complainant's
Motion
for Summary
Judgement
seeks a
finding
of violation
on
the allegations
in
the Complaint,
but
also
specific
interim relief.
The
Board both
invites and
expects
such a request
in Motions
for Summary
Judgement.
In accepting
complaints
for
hearing,
the Board
routinely
orders:
"Accordingly,
the Board
further
directs
the
hearing officer
to advise
the
parties
that in
summary
judgment motions
and
responses,
at hearing
and in
briefs,
each party
should
consider:
(2.) proposing
a remedy
for a violation,
if
any (including
whether
to
impose a civil
penalty),
and supporting
its
positions
with facts
and arguments
that
address any
or
all of the
Section
33(c) factors;"
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
7. The
affidavits
and exhibits
attached
to
Complainant's
Motion support
both
a finding
of
liability
against
the
Respondents
based
on the
allegations
in the
Complaint,
and
also
the
interim
relief
sought.
Complainant
does
not need
to amend
its
complaint
to 'allege'
each fact
contained
in the
several
affidavits
attached.
The affidavits
are evidence,
not
allegations.
Complainant
argues
this evidence
in its
motion.
Notably,
CLC's response
does
not contain
any
counter-affidavit
on
the issue
of ongoing
waste
disposal.
S.
Although
Complainant
does
not now
seek to
amend its
Complaint,
it notes
that,
pursuant
to 735 ILCS
5/2-616
Cc)
,
it
is
entitled
to
amend
its complaint
at
any time,
including
after
hearing.
III.
THE BOARD
IS AUTHORIZED
TO
ORDER
THE INTERIM
RELIEF
SOUGHT
BY COMPLAINANT
9. Without
citing
any
case authority,
CLC claims
that
'¾...while
the
Board does
have the
power
to issue
a cease
and
desist
order, it
may only
do so
upon issuing
a final
order".
CLC`
Motion,
p.
3. However,
nothing
in
the Act prevents
the Board
from
issuing
a cease
and desist
order,
or other
affirmative
relief, after
a finding
of liability
but prior
to a hearing
on
civil
penalty.
10.
Section 33
of the
Act, 415
TLCS 5/33
(2004),
provides,
in pertinent
part:
(a) After
due consideration
of
the written
and
oral
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
statements,
the testimony and arguments that shall be
submitted at the hearing, or upon
default in appearance
of the
respondent on return day specified in
the
notice, the Board shall issue
and enter such final
order,
or make such final determination, as it shall
deem appropriate
under the circumstances.
(b) Such order may include a direction
to cease and desist
from violations
of this Act ....
Respondent
claims that this language only allows the Board
to issue orders
dealing with
all
issues in the case, after
hearing. This contention
is without merit, and contrary to
standard Board procedure.
11. First, CLC's contention conflicts with the
very purpose
of summary judgment-to avoid the expense and delay
of hearing in
cases
where there is no real dispute. If the Board had to
rely
on oral testimony
and make final determination of all issues
prior to entering an order, the Board's summary judgment rules
would be meaningless. Clearly the language
' ... final order, or
make such final determination...
I'
assumes
that there will be
cases where only certain issues are determined, and
interim Board
findings are made.
12. The Board
often grants partial summary judgement prior
to hearing on penalty. In
People v. Michael Stringini,
PCB 01-43
(October 16, 2003), the Board found that the Respondent
violated
certain Sections of the Act
,
and ordered him to
cease and desist
from further violations. However a full hearing
was not held
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
until March 23, 2004, and the Board's final order was not issued
until January 20, 2005. In
Krautsack v. Patel et al,,
PCB 95-143
(August 21, 1997), the Board granted partial summary judgment,
ordered the Respondents to cease and desist from further
violations, and ordered a Respondent to remediate the site, but
deferred its decision on civil penalty. The matter continued
before the Board until a settlement agreement and dismissal were
entered on February 26, 1999. Complainant's
assertion that the
Board may not enter interim
relief is without merit.
13. Additionally, appellate courts recognize the Board's
broad power to address violations. In
Discovery South Group Ltd.
v. Pollution Control Board,
275 Ill. App. 3d 547 (ill Dist 1995),
the Court upheld the Board's technical remedy, noting:
"the legislature has conferred upon the
...
Board
those
powers that are reasonably necessary to accomplish the
legislative purpose of the administrative agency;
specifically the imposition of monetary penalties for
violation of the.
..
.Act, and necessarily the power to order
compliance with the Act". 275 Ill. App. 3d 547, 560
(quoting
Kaeding v. Pollution Control Board,
22 Ill. App. 3d
36, 38 (2d Dist. 1974)) (emphasis supplied).
14. In our case, Complainant has shown that the Respondents
continue to operate a landfill without compliant financial
assurance for closure/post-closure activities. The interim
relief requested, including an order for the Respondents to stop
accepting materials until in compliance and to obtain compliant
financial assurance, is the onljy way for the Respondents to come
into compliance with the Act. Moreover, since the evidence shows
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
that the violations are continuing,
it is the only way for the
Board to order the Respondents to 'cease and desist' from the
current violations.
15. Respondent CLC filed its
Motion to Strike on October
3, 2005, more than forty days after Complainant served its Motion
for Summary Judgment. No extension was granted by either
agreement or by the hearing officer for filing this Motion, which
should therefore be denied as untimely.
16. Complainant
is not obligated to delay resolution of
this case by amending its complaint to include evidence attached
to its Motion. To the contrary, the Board should order the
Respondents to come into compliance on an expedited basis.
17. The Board clearly is authorized to order the interim
relief sought in Complainant's Motion without a full hearing.
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board deny Respondent COMMUNITY
LANDFILL COMPANY's Motion to Strike
Portions of Complainant's
Motion for Summary Judgment.
BY:
RTPHER GRANT
Assistant Attorneys General
Environmental Bureau
188 W. Randolph St.,
2 0
th
Flr.
Chicago, Illinois 60601
(312) 814-5388
(312) 814-0609
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
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 18th day of
October, 2005, the foregoing
Complainant's Response to Community Landfill Company's Motion to
Strike, 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
