BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
ex
)
rei.
LISA MADIGAN, Attorney General ofthe
)
State oflllinois,
)
)
Plaintiff,
)
)
~
)
)
COMMUNITY LANDFILL CO., an Illinois
)
Corporation, and the CITY OF MORRIS, an
)
Illinois Municipal Corporation,
)
Defendants.
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PCB 03-191
(Enforcement - Land)
PLEASE TAKE NOTICE that
on October 26, 2007, we electronically filed with the
Clerk of the Illinois Pollution Control Board, City's Response in Opposition to the State's
Motion to Strike
or Dismiss the Affidavit of Mayor Richard Kopczick, a copy of which is
attached hereto and hereby served upon you.
Dated:
October 26, 2007
Charles F. Heisten
Hinshaw
&
Culbertson LLP
100
Park Avenue
P.O.
Box 1389
Rockford,
II..
61105-1389
815-490-4900
Respectfully
submitt~
On behalf of the CITY OF MORRIS
lsi
Charles F. Helsten
Charles F. Heisten
One
ofIts Attorneys
70541513vl 806289
Electronic Filing; Received, Clerk's Office, October 26, 2007
AFFIDAVlT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the illinois Code of Civil
Procedure, hereby under penalty
of perjury under the laws of the United States of America,
certifies that
on October 26, 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,UL 60602
Chicago, UL 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 filing)
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
A
copy of the same was enclosed in
an
envelope in the United States mail at Rockford, Dlinois,
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
7041S200v1806289
PCB No. 03-191
(Enforcement-Land)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex
)
reI.
LISA MADIGAN, Attorney General ofthe
)
State oflllinois,
)
)
Plaintiff,
)
)
v.
)
)
COMMUNITY LANDFILL CO., an Dlinois
)
Corporation, and the CITY OF MORRIS, an
)
lllinois Municipal Corporation,
)
)
Defendants.
)
CITY'S RESPONSE IN OPPOSITION TO TIlE STATE'S
MOTION TO STRIKE OR DISMISS THE AFFIDAVIT OF
MAYOR RICHARD KOPCZICK
NOW COMES the Defendant, CITY OF MORRIS, an lllinois Municipal Corporation, by
and through its attorneys, and in opposition to the State's Motion to Strike or Dismiss the
Affidavit
ofMayor Richard Kopczick states as follows:
BACKGROUND
The underlying proceeding at issue is an enforcement action involving allegations that the
City
of Morris
('~e
City") and its co-defendant, Community Landfill Company, Inc. ("CLC")
violated Section 5/21(d)(2)
of the Illinois Environmental Protection Act, and Sections 811.700(f)
and 811.712
of the Board's Financial Assurance Regulations. Hearings were held concerning
the State's allegations on September 10, 11, and 12, 2007, and at the conclusion
of the hearing,
the Hearing Officer set a public comment deadline
of October 9, 2007.
During the public comment period, the Mayor
of the City of Morris, Mr. Richard
Kopczick, filed a written statement
in
which he commented on the Financial Assurance bonds at
issue
in
the case and on related matters. The Mayor's statement was timely filed during the
public comment period.
70540S52vl 806289
The State subsequently filed a Motion to Strike or Dismiss the Mayor's statement,
erroneously asserting that it was liot suitable for filing as public comment based on the theory
that only participants may submit public comment.
In
the alternative, the State incorrectly
asserts that the statement presents "no argument
or comment relevant to the record or legal
argument citing legal authority." (State's Motion at
~
11). For the reasons set forth below, the
State'sarguments are without merit and its Motion should accordingly
be denied.
ARGUMENT
1.
"Any
Person~'
May File Written Statements With the Board During the Public
Comment Period
The Board's rules, codified at 35 lll.Adm.Code 101.202, define
~~Public
Comment" as
follows:
"Public comment" means information submitted to the Board
during
a pending proceeding either by oral statement made at
hearing or
written statementfiled with the Board.
35m.Adm. Code 101.202 (emphasis added).
The Environmental Protection Act
("the Act") expressly provides that with respect to
hearings conducted pursuant to enforcement actions,
"any person
may submit written statements
to the Board
in connection with the subject thereof." 415 ILeS 5/32 (emphasis added).
The Board'srules define the
tenn ''person''as:
any individual, partnership, co-partnership,
finn, company, limited
liability company, corporation, association, joint stock company,
trust, estate, political subdivision, state agency, or any other legal
entity, or their legal representative, agent or assigns.
415
ILeS 5/32.
2
70540552vl 806289
The Mayor of Morris is a person as defined by 35 Dl.Adm.Code 101.202,1 and filed a
written statement with the Board
in connection with the enforcement action in accordance with
415 lLCS 5/32, within the public comment period specified
by the Hearing Officer. Therefore,
the filing
of the Mayor's written statement was authorized by the Act and by the Board's
regulations.
2.
Parties Are Not Prohibited From Filing Statements During the Public Comment
Period
In
support of its argument that
parties
are prohibited from filing written statements with
the Board during the public comment period, the State relies on 35 TIl.Adm.Code 101.628, which
sets forth the rights
of
participants
to submit statements. That section is titled, appropriately
enough, "Statements from Participants."
The "Statements from Participants" Section
of the Board'srules authorizes participants to
file public conunents and amicus curiae briefs.
ld.
at ยง 101.628(c).
It
is utterly unremarkable
that the provision addressing "Statements from Participants" should be silent with respect to
statements from
parties.
It
is noteworthy that the "Statements from Participants" section is also
silent with respect to non-participating members
of the public, although the State presumably
does
not argue that this silence should be interpreted to mean that non-participating members of
the general public are barred from filing written statements during the public comment period.
The State's assertion that the Section's silence concerning the right of parties to file written
statements should be read
to
constitute a prohibition against such statements suffers from a
logical fallacy: the fact
that it shows
participants
are
authorized
to file written statements does
not equate with a blanket
prohibition
against the filing of such statements by those who are
not
participants.
In
fact, to read the regulations this way would completely ignore the legislature's
1
The State concedes
in
its Motion that
the
Mayor
is
a ''person''as defined by the Act. (State'sMotion at'8).
3
70540552vl 806289
declaration at 415 ILCS 5/32, which unequivocally permits
any
person
to
file a written statement
concerning an enforcement proceeding.
The reading urged
by the State would violate well established principles of statutory
construction, including the rule that words and phrases must not be construed so as
to
read into a
statute "exceptions, limitations,
or conditions that the legislature did not express."
NDC LLC v.
Topinkil,
374 Ill.App.3d 341, 359, 871 N.E.2d 210 (2
nd
Dist. 2007). Here, the legislature clearly
expressed its intent to permit
"any
person" to file written comments with the Board. Interpreting
35 m.Adm.Code lO1.628(c) to deprive
parties
of a right expressly granted by the legislature
would thwart legislative intent.
Even
if the Board had intended for its regulations to abrogate the right of certain classes
of persons to file statements during the public comment period, it is well established that an
administrative body cannot abrogate a statutory provision
by the exercise of its rulemaking
powers.
Department ofRevenue v. Civil Service Comm 'n,
357 Ill.App.3d 352, 364, 293 TIl.Dec.
79,827 N.E.2d 960 (2005). Administrative rules "can neither limit, enlarge nor amend the scope
ofthe statute beyond the clear import of the legislative language used:'
Illinois RSA No.3, Inc.
v.
Department ofCent. Management Services,
348 Ill.App.3d 72, 77, 809 N.E.2d 137 (lll.App. 1
st
Dist. 2004).
Here, the statute expressly permits
"any person" to file a written statement with the Board
in
an enforcement action. 415 ILCS 5/32).
If
the Board'srule
did,
as the State argues, operate to
deprive certain persons of the right to file written statements, that limitation would be invalid.
As the Illinois Supreme Court recently explained, if an administrative rule cannot be reconciled
with the statute under which it was adopted, the rule is simply invalid.
Hadley
v.
illinois Dept. of
Corrections,
224 n1.2d 365, 385, 864 N.E.2d 162, 173 (2007) (citing
Carson Pirie Scott,
131
m.2d 23, 544 N.E.2d 772 (1989) (recognizing that agency action that is inconsistent with the
4
70540552v1806289
statute must be overturned). Similarly, the Dlinois Appellate Court has unifonnly declared that in
a conflict between an administrative regulation and a statute, the statute controls.
See e.g.
Hawthorne Race Course, Inc.
v.
Illinois Racing Bd.,
366 m.App.3d 435,443, 851 N.E.2d 214
(1st Dist. 2006).
Therefore, the only reasonable reading
of Section 101.628(c) is that the IPCB did not
intend to restrict non-participating members
of the public and parties from .filing public
comment, because the Board was clearly aware of Section 5/32 of the Act. Indeed, if the IPCB
had intended to bar the non-participating public and the parties from filing public comment,
despite 415 ILCS 5/32 and 35 TIl.Adm.Code 101.202,
it would have done so explicitly.
Therefore. pursuant to the plain language
of the statute and regulations, the State's motion
to
strike should be denied.
3.
The Board has a Long-Standing Practice of Accepting Submissions from Parties
During the Public Comment Period
In addition to the legislature's declaration that
"any
person" may file a written statement
during the public comment period, the Board has long accepted submissions from parties during
public comment, and the Illinois Appellate Court has found there is
no reason for the Board not
take such submissions.
For example, in
Land and Lakes Co. v. Illinois Pollution Control
Bd, 319
Ill.App.3d 41, 743 N.E.2d 188 (3
rd
Dist. 2000) the Appellate Court held that there was nothing
improper about
an
applicant's submission of 2.000 pages of written material on the last day of
the public comment period.
ld.
Moreover, in 1990, in
Village ofSauget
v.
PCB,
207 m.App.3d
974, 566 N.E.2d 724 (5th Dist. 1990), the Appellate Court
held that a
~
was improperly
"denied an effective opportunity to submit information during the public comment period."
Id.
at 983.
5
70540552vl 806289
Similarly, the Board itself held in
Waste Management ofillinois, Inc.
v.
County Bd. of
Kane County,
PCB 03-104 (June 19, 2003), that the siting proceedings
in
that case were not
fundamentally
unfair, inasmuch as the petitioner, Waste Management, was "afforded an
opportunity to
be heard, to cross-examine adverse witnesses,
and to submit comments during the
statutory period." Id.
at p. 8 (emphasis added). The fact is, the Board's files are replete with
public comments submitted
by parties throughout the years, and the argument proffered by the
State that the Mayor's statement cannot
be filed during the public comment period is therefore
entirely inconsistent with the Board'spractice, in addition to being contrary to lllinois law.
The State erroneously cites
American Bottom Conservancy, et ai.
v.
Village ofFairmont
City, et ai.,
PCB No. 01-159, p. 7 (Oct. 18,2001 )
("ABC'),
as providing support for its motion.
(State's Motion
at'8). As a threshold matter, the language from
ABC
which is quoted by the
State is mere dicta, and appears after the Board already declared
its holding: that the challenged
Landfill Capacity Report
in that case was not part of the record before the siting authority, and
therefore was not a part
ofthe record on appeal. As a result, the Board held it could not consider
the report in its review
of the underlying siting hearing. The "off-hand comment" appeared only
after
the PCB had held that the report was stricken because
it
was not part of the underlying
record. No analysis or reasoned discussion was had on this issue, and the PCB
has
allowed
public comment
by parties on numerous occasions since the
ABC
case.
Furthermore,
in contrast with the Board's role in the present case, which is an
enforcement action,
in
ABC
the Board sat as a reviewing body, charged with deciding whether
the siting authority's decision was based on sufficient evidence to establish
that all of the
statutory landfill siting criteria were met. This case is not an appeal from a siting hearing
in
which the Board must limit its review to the underlying record on appeal. Rather, it is an
6
70540552vl 806289
enforcement action: a primary, fact-finding proceeding governed by 415 ILCS 5/32, which
expressly
permits anyone
to
file written statements concerning the action with the Board.
Finally, it should be noted that a prior determination by an administrative body is not
res
judicata
in
subsequent proceedings, because an administrative body has the power
'~o
deal freely
with each situation as
it comes before it, regardless of how it may have dealt with a similar or
even the same situation
in a previous proceeding."
Hawthorne,
366 m.App.3d at 443. Thus,
dicta
in
a 2001 appeal of a siting hearing does not bind the Board in this case.
4.
The Mayor'sStatement Presents Comment Concerning the Proceeding
The State further asserts that even if the Mayor's statement can be filed during public
comment, the statement is not "appropriate" because it does not "make reference
to
the record of
this proceeding or present legal argument citing legal authorities." (State's Motion at
~
10).
Although the State apparently wishes to dictate its own requirements for public comment, the
dictates it seeks to impose are inconsistent with the Environmental Protection Act and the
Board'sown rules.
The Act provides that in an enforcement action,
"any person may submit written
statements to the Board
in connection with the subject thereof"
415 ILCS 5/32 (emphasis
added). The rules provide that Public Comment consists
of
"information submitted to the Board
during a pending proceeding either
by
oral statement made at hearing or written statement filed
with the Board."
35 Ill.Adm.Code 101.202 (emphasis added). Even the provision of the rules
which governs statements made
by
participants
requires only that the statements be
"based on
evidence contained in the record." 35 1ll.Adm.Code 101.628(c)(2).
The Mayor's statement is based upon and comments directly on the core issue at the
center
ofthe Board'shearing: the Financial Assurance requirements and mechanisms concerning
7
70540552vl 806289
the Morris Commmri-ty Landfill. Therefore, the State's argument that the Mayor's statement
fails to meet the relevance requirement is disingenuous.
CONCLUSION
The Hearing Officer in this case set October 9, 2007 as the deadline for the public
comment period, during which written statements could be :filed with the Board in the
enforcement action against the City of Morris. Pursuant to the legislative declaration that "any
person" may file written statements with the Board concerning enforcement actions, a statement
in
this case was timely filed in which the Mayor of the City ofMorris commented on the action.
Because the Mayor's statement was filed in accordance with lllinois law, there is no basis
whatsoever for striking the Mayor's statement, and the State's Motion should accordingly be
denied.
WHEREFORE, for the reasons set forth above, the Defendant, CITY OF MORRIS, a
Municipal Corporation, respectfully requests that this Board deny the State's Motion to Strike
and Dismiss the Affidavit of Mayor Kopczick, and grant such other and further relief as the
Board deems appropriate.
CITY OF MORRIS, Defendant
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford,
n.
61105-1389
815-490-4900
Scott M. Belt
&
Associates, P.C.
105 East Main Street #206
Morris, II... 60450
(815) 941-4675
8
70540552vl 806289
