BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

vs.

EDWARD PRUIM and ROBERT PRUIM,

Respondents.

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

vs.

COMMUNITY LANDFILL COMPANY,

INC.,

Respondent.

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PCB No. 04-207

(Enforcement - Land)

PCB No. 97-193

(Enforcement - Land)

(consolidated)

NOTICE OF FILING

TO: Christopher Grant

Jennifer VanWie

Environmental Bureau

Assistant Attorney General

69 W. Washington, 18th Floor

Chicago, Illinois 60602

cgrant@atg.state.il.us

jvanwie@atg.state.il.us

Bradley Halloran

Hearing

Officer

Illinois Pollution Control Board

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

hallorab@ipcb.state.il.us

PLEASE TAKE NOTICE that on MAY 4, 2009, the undersigned caused to be

electronically filed with Mr. John Therriault,

of the Illinois Pollution Control Board, 100 West

Randolph Street, Suite 11-500, Chicago, Illinois 60601, the

RESPONDENTS COMMUNITY

LANDFILL COMPANY, INC., ROBERT PRUIM AND EDWARD PRUIM'S POST-

HEARING BRIEF, a copy of which is attached and hereby served upon you.

/s/ Clarissa

Y. Cutler

One of Respondents' Attorneys

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

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Mark A. LaRose

LaRose

&

Bosco, Ltd.

200 N. LaSalle Street, Suite 2810

Chicago IL 60601

(312) 642-4414

Atty. No. 37346

Clarissa

Y.

Cutler

Attorney at Law

155 North Michigan Avenue, Suite 375

Chicago IL 60601

(312) 729-5067

Atty No. 44745

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS, )

Complainant,

vs.

EDWARD

PRUIM and ROBERT PRUIM,

Respondents.

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PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

vs.

COMMUNITY LANDFILL COMPANY,

INC.,

Respondent.

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PCB No. 04-207

(Enforcement - Land)

PCB No. 97-193

(Enforcement - Land)

(consolidated)

ROBERT PRUIM AND EDWARD PRUIM'S POST-HEARING BRIEF

Respondents

COMMUNITY LANDFILL CO., INC., ROBERT PRUIM and EDWARD

PRUIM, by Mark

A.

LaRose and Clarissa

Y.

Cutler, hereby submit tlleir Post-Hearing Brief and

in support thereof state as follows:

I.

INTRODUCTION

The

complaints in tins consolidated matter alleged more than 20 specific allegations

against Community Landfill Co., hIc. (CLC) (pCB No. 97-193), willi some substantially

identical allegations against Edward and Robert Pruim (tile Pruims), the officers and directors

of

CLC, seeking to hold tllem personally liable (PCB No. 04-207). Attached as Exhibit A to tIns

brief is a listing

of llie specific counts in each case, willi tile outstanding issues related to each

count.

1

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The evidence at hearing was insufficient to establish personal liability of the Pruims for

any and all counts at issue. In order to attach personal liability, the evidence must establish by a

preponderance that the Pruims were directly and personally involved in the acts giving rise to the

alleged violations, not just that they were directly and personally involved in managing the

corporation. The evidence in this case falls woefully short

of establishing such personal liability.

While Edward and Robert Pruim managed some corporate issues from an office

60 miles from

the landfill, they were not involved in the day-to-day operations

of the landfill, and had

absolutely no involvement - personal or otherwise -- in the acts giving rise to alleged violations.

The Board should rule in favor

of Edward and Robert Pruim on all counts of the complaint in

PCB No. 04-207.

Through pretrial procedures, summary judgment was granted in favor

of CLC on Counts

XI, XII, XVIII and XXII in PCB No. 97-193. (See Exh. A). Therefore, those counts are no

longer at issue. Also through pretrial procedures, Counts XI, XIII, XIV, XV, XVI, and XVIII in

PCB 04-207 were dismissed against Robert and Edward Pruim. Therefore, these counts are only

at issue against CLC in PCB No. 97-193. (See Exh. A).

Summary judgment was denied by the Board on

October 3, 2002, in regard to the

following counts and the liability

ofCLC, and penalty, ifany, is still at issue: Count I (Failure to

Adequately Manage Refuse and Litter); Count II (Failure to Prevent or Control Leachate Flow);

Count VI (Water Pollution); Count

XV (Failure to Provide Information on the Gas Management

System Prior to its Operation); Count XVII (Failure to have Leachate from the Gas Recovery

System Disposed

of at a POTW); and Count XIX (part) (Failure to Increase Financial Assurance

Prior to Operation

of the Gas System). (See Exh. A). On these counts, the evidence is

2

Electronic Filing - Received, Clerk's Office, May 4, 2009

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insufficient to establish any violation.

In

the alternative, any penalty for these violations should

be nominal.

On several counts in Case PCB No. 97-193, summary judgment was granted for the State

and only penalty is at issue: Count III (Failure

to Properly Dispose of Landscape Waste); Count

IV (Failure to Provide and Maintain Financial Assurance Pursuant to April 20, 1993 Permit);

Count V (Failure to Timely File the Required Application for a Significant Modification);

Counts VII-X (Overheight Violations); Count XIII (Improper Disposal

of Waste Tires); Count

XIV (Failure

to Use Movable Fencing when Fill is at a Higher Elevation than the Natural

Ground Line); Count XVI (Failure to Take Corrective Action Regarding Erosion, Ponding,

Cracks Greater than 1

n, etc.); Count XIX (part) (Failure to Provide and Maintain Financial

Assurance Pursuant to October 24, 1996 Permit - to increase it by January 22, 1997; and Count

XXI (Failure

to Provide Revised Cost Estimate by December 26,1994) (Exh. A).

On these counts, the penalties imposed by the Board should be reasonable, with a basis

toward compliance and not punishment and with a rational relation to the lack

of any actual

environmental harm caused. CLC proposes that the Board impose an aggregate penalty against it

of no more than $25,000.00.

II.

RELIEF SOUGHT

This section provides the Board with a count-by-count overview of the relief sought by

the Respondents:

A.

Claims Against Edward and Robert Pruim Individually in PCB No. 04-207

Count No.

I

Claim

Failure to adequately manage

refuse and litter

3

Relief Sought by

Respondents

Finding for Respondent of

no liability

Electronic Filing - Received, Clerk's Office, May 4, 2009

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II

III

IV

v

VI

VII

VIII

IX

X

XII

XVII

XIX

Failure to prevent or control

leachate flow

Failure to properly dispose

of

landscape waste

Failure to provide and maintain

adequate financial assurance

Failure to file required

significant modification

Water pollution

Depositing waste in an unpermitted

portion

of a landfill

Conducting waste disposal operation

without a permit

Open Dumping

Violation

of Special Condition 3

- overheight

Improper disposal

of used tires

Failure to provide and

maintain financial assurance pursuant

to October 24, 1996 permit

Failure to provide revised

cost estimate by December 26, 1994

B.

Claims Against CLC in PCB No. 97-193

Count No.

I

I.

Counts in which Liabilitv is at Issue:

Claim

Failure to adequately manage

refuse and litter

4

Finding for Respondent of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Finding for Respondent

of

no liability

Relief Sought

Finding for Respondent of

no liability

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II

VI

xv

XVII

XIX (part)

xx

Count No.

III

IV

V

VII

VIII

IX

Failure to prevent or control

leachate flow

Water pollution

Failure to provide information

on

the gas management system

prior to its operation

Failure to have leachate from

the gas recovery system disposed

of at a POTW

Failure to increase financial assurance

prior to operation

of the gas system

Failure to get an operating permit

and IEP A approval based on

engineer's certification before

placing waste

in unapproved area

2.

Counts in which only Penalty is at Issue:

Claim

Failure to properly dispose of

landscape waste

Failure to provide

and maintain

adequate financial assurance

Failure to file required

significant modification

Depositing waste in an unpermitted

portion

of a landfill

Conducting waste disposal operation

without a permit

Open Dumping

5

Finding for

Respondent of

no liability

Finding for

Respondent of

no liability

Finding for Respondent of

no liability

Finding for

Respondent of

no liability

Finding for Respondent of

no liability

Finding for

Respondent of

no liability

(the State has requested

this count be dismissed.

See

State's brief, p. 42)

Relief Sought

Nominal penalty for

Respondent

Nominal penalty for

Respondent

Nominal penalty for

Respondent

Reasonable penalty for

Respondent

Reasonable penalty for

Respondent

Reasonable penalty for

Respondent

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x

XIII

XIV

XVI

Violation of Special Condition 3

- overheight

Improper disposal

of used tires

Failure to use movable fencing when

fill is at a higher elevation

than the natural ground line

Failure to

talee corrective action

regarding erosion, ponding,

cracks greater than I

", etc.

Reasonable penalty for

Respondent

Nominal penalty

for

Respondent

Nominal penalty

for

Respondent

Nominal penalty for

Respondent

XIX (part)

Failure to provide and

Nominal penalty for

Respondent

XXI

maintain financial assurance pursuant

to

October 24, 1996 permit

(to increase fmancial assurance by

January 22, 1997)

Failure to provide revised

cost estimate

by December 26, 1994

Nominal penalty for

Respondent

III.

FIND PERSONAL LIABILITY AGAINST THE PRINICP ALS OF CLC

The State seeks to impose personal liability against the principals of Community Landfill

Co., Ioc., Robert Pruim and Edward Pruim. However, the State has failed to provide sufficient

evidence for a finding

of personal liability under either an analysis of Illinois caselaw or through

the responsible corporate officer doctrine

..

A.

Legal Standards for Personal Liability

10 order for the Board to find the principals of CLC personally liable for any allegation,

the State must show

at hearing that the principals had personal involvement or active

participation in the acts resulting in liability, not

just that they were personally involved or

actively participated

in the management of CLC. People v. Tang, 346 Ill.App. 3d 277, 289, 8-5

N.E.2d

243,253-54 (lst Dist. 2004).

It

is not enough to prove that either corporate officer was

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personally involved in or actively participated in the corporation's management. People v. Petco

Petroleum, 363 Ill.App.3d 613, 623,

841 N.E.2d 1065, 1073 (4

th

Dist. 2006). In order to state a

claim against an individual under the Act, the State must show the defendant's direct and

personal involvement in the alleged wrongful acts. Tang, 346 Ill.App.3d at 289.

The two cases decided in Illinois courts after full evidentiary hearings illustrate

that the

State has failed to meet the standards required for the Board to find the principals

of CLC

personally liable.'

In State v. Petco Petroleum Comoration, 363 Ill.App.3d 613, 841 N.E. 2d

1 065 (4

th

Dist. 2006) the Court did not find the corporate officer to be personally liable. In

People v. Agpro. Inc., 345 Ill.App.3d 1011, 803 N.E.2d 1007

(2

nd

Dist. 2004), the court did find

personal liability.

An

analysis of the courts' findings of fact based on the State's evidence

offered in those cases confirms the Respondents' position herein that the Board should hold that

the officers

of CLC are not personally liable.

In Petco, the Appellate Court affirmed the trial court's holding that the president was

not

personally liable. Petco, 363 Ill.App.3d 613, 623-25. In its unsuccessful attempt to persuade the

Court to make a finding

of personally liability, the State proffered evidence that the president

acted

as follows:

1)

exercised overall control over the company, including making significant

financial decisions;

2)

was involved in many aspects of the oil production operation, including:

a)

reviewing bids for certain equipment;

b)

allocating money for special projects, such

as upgrading an alarm system,

and

c)

signing checks to compensate landowners whose property was damaged

by Petco's spills;

3)

received reports on operational matters and occasionally visited the fields;

The State ignores People v. Peteo Petroleum. 363 Ill.App.3d 613,841 N.E.2d 1065 (4"' Dis!. 2006) and does

not include any analysis

of it in the post-hearing brief.

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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4)

knew about many of the spills and leaks;

5)

told one of his foremen not to report spills;

6)

played an active part in defending Petco against hundreds of administrative

charges; and

7)

failed to implement a policy of spending money on maintenance that would

prevent leaks.

People

v. Petco, 363 IlI.AppJd 613, 624.

In response

to the State's position, Petco contended that the trial court correctly found the

defendant was not personally liable and cited to the following evidence

as support:

1)

the president did not exercise day-to-day control of Petco's operations, instead he

exercised nothing more than general corporate authority;

2)

the president delegated a "vast amount" of decision-maldng to Petco's

superintendents and field foremen and gave them authority to:

a)

malce most hiring and firing decisions,

b)

purchase all items used during the normal course

of Petco operations, and

c)

shut down wells and conduct spill-response activities;

3)

Petco employees were not required

to report spill events to the president and

rarely did so;

4)

on those occasions where the president made decisions on Petco's behalf, such

as

whether to drill new wells, he did so only after consulting with Petco's employees

and contractors and relied on their expertise;

5)

the president had no personal involvement or active participation in the 168 spill

events;

6)

the president explained that

a)

he told one of his foremen not to report spills after he became upset about

the Department's treatment

of Pet co, and

b)

within a short time the president reversed his position and told Petco

employees to report all spills and cooperate witll the Department; and

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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7)

there was no evidence that the president misrepresented anything to the

Department or knowingly engaged in conduct that resulted in spills.

People v. Petco, 363 Ill.App.3d 613, 624.

In comparing the actions and non-actions

of the president in Petco with those of the

Pmims, the Board can see that the evidence presented by the State does not rise to a level

necessary to a finding

of personal liability. Indeed, the evidence presented by the State in this

case is far less than that offered in Petco. All the State was able to present in its case-in-chief,

including calling the Pmims

as adverse witnesses, is that the officers and shareholders Robert

and Edward Pmim:

1)

were the sole officers and shareholders of CLC;

2)

maintained corporate offices in Crestwood, Illinois, a town some

60 miles away

from the landfill;

3)

signed checks for CLC and approved credit;

4)

issued personal guarantees

of royalties to the City of Morris as well as to Frontier

Insurance Company on bond issues;

5)

arranged for financial assurance for closure and post closure of the landfill;

6)

signed pennit applications for landfill development, modification or expansion;

7)

signed annual landfill capacity certifications;

8)

owned or were involved in separate companies that were involved in waste-

related activities and that some

of these companies shared a common Crestwood

mailing address with CLC.

That is the total extent

of the evidence the State presents in an attempt to establish personal

liability

of Edward and Robert Pmim for the myriad of allegations contained in the complaint.

These actions are simply insufficient to establish personal liability. Even these actions, however,

were taken not individually but in the Pmims' capacity

as corporate officers. Like the evidence in

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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Petco, none of these actions were sufficient to establish personal liability for any of the matters

alleged in the complaint and at issue at the hearing.

On the contrary, the Respondents' evidence at the hearing in this case established:

1)

Not one of the State's witnesses had any evidence that Edward or Robert Pruim

had personal involvement

or active participation in any of the alleged violations.

(Tina Kovasznay, Dec. 2, 2008

2

,

pp. 44, 48, 51, 59, 79-80; Warren Weritz, Dec. 3,

2008, pp.

85,90-91,92, 93, 94, 101-102; Christine Roque, Dec. 2, 2008, pp. 79-

80; Ellen Robinson, Dec. 3, 2008, p. 39;

Gary Styzens, Dec. 2, 2008, pp. 197-98)

2)

The Pruims both denied that they had personal involvement or direct participation

in any

of the allegations at issue. (Robert Pruim, Dec. 4, 2008, pp. 54-63; Edward

Pruim, Dec. 4, 2008, pp. 93-100)

3)

The day-to-day operation

of the landfill was conducted by site operator Jim

Pelnarsh. (Jim Pelnarsh, Dec. 4, 2008, p. 28; Robert Pruim, Dec. 4, 2008, pp. 39,

52-53)

4)

Pelnarsh made the decision on where, when and how to place waste on Parcels A

and

B.

(Jim Pelnarsh, Dec. 4, 2008, p. 27)

5)

The government inspectors never dealt with Edward

or Robert Pruim - their on-

site contact was Jim Pelnarsh. (Tina Kovasznay, Dec. 2, 2008, pp.

22,42, and 43;

Warren Weritz, Dec. 3, 2008, pp. 61,

78, 83-84; Mark Retzlaff, PCB 01-170,

Vol.

I, Oct. 15,2001, pp. 66-69)

6)

The Pruims had no involvement in the day-to-day operations

of CLC - that was

Jim Pelnarsh. (Robert Pruim, Dec. 4, 2008; pp. 39, 52-53; Jim Pelnarsh, Dec. 4,

2008, pp. 27-28)

7)

To the extent they signed permit applications and landfill capacity reports, it was

as corporate officers and merely a normal part

of their corporate officer

responsibility. (Edward Pruim, Dec. 4, 2008, pp. 74, 76, 86)

8)

To the extent they arranged for financial assurance, it was as corporate officers

and merely a normal

part of their corporate officer responsibility. (Robert Pruim,

Dec. 4, 2008, pp. 60-61; Edward Pruim, Dec. 4, 2008, pp. 73-74, 83)

9)

There was no directive from Robert or Edward Pruim to Jim Pelnarsh to place

waste above permitted capacity. (Jim Pelnarsh, Dec. 4, 2008, p. 26; Robert Pruim,

Dec. 4, 2008, p. 62; Edward Pruim, Dec. 4, 2008, p. 82)

2 Cites to Dec. 2,2008, Dec. 3, 2008, and Dec. 4,2008 are the dates of the hearing and refer to the transcript of the

hearing.

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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Based on the lack of any evidence of direct and personal involvement of Edward and

Robert Pruirn in the allegations

at issue, coupled with the affumative evidence that they were not

personally involved, the Board should fmd for Edward and Robert Pruim and against the State on

each and every count

of the complaint.

In

contrast with People v. Petco, the Appellate Court in People v. Agpro, Inc., upheld the

trial court's finding of personal liability against that company's president in regard to water

pollution.

345 Ill.App.3d lOll, 1028,803 N.E.2d 1007, 1019 (2

nd

Dist. 2004). In doing so, the

court found that the trial court had not erred in holding that the president of the company caused

or allowed the contamination

of the site and had control over the pollution or was in control of

the area where the pollution occurred, and did not tal(e precautions to prevent the pollution. Id.

In affirming the trial court, the appellate court cited

specific evidence

that Agpro's president

had:

I)

personally run Agpro's operations at the site;

2)

spent a great deal oftime at the site;

3)

directly supervised his employees;

4)

personally applied fertilizer and pesticides

to farm fields by operating a "floater";

and

5)

admitted in a conversation with an IEPA inspector that

he

intentionally rinsed out

the "floaters" on the gravel at the Agpro site.

People

v. Agpro, 345 IlI.App.3d lOll, 1028-29, 803 N.E.2d 1007, 1019 (2

nd

Dist. 2004). The

Court stated that tlus was exactly the type

of personal involvement or active participation

required to hold a corporate officer individually liable under the Act.

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A comparison of the evidence presented by the trial court and affirmed by the appellate

court in People v. Agpro with that which the State proffered in the present matter shows that the

State has failed in making its case for personal liability against the principals

of CLC. In contrast

to the president of the company in Agpro, Robert and Edward Pruim, as cited on page 10, supra:

1)

Did not personally run site operations;

2)

Did not spend any significant time at the site;

3)

Did not supervise on-site activities or employees;

4)

Had no personal involvement

in

waste placement decisions or activities;

5)

Had no personal involvement in any

of the specification allegations;

6)

Did not do any actual on-site work; and

7)

Denied all personal liability rather than admitting it.

In its Post-Hearing Brief, the State acknowledges that lmder Illinois law, it must allege

facts that establish the corporate officer had personal involvement or active participation in the

acts resulting in liability, not

just that the officer had personal involvement or active participation

in the management of the corporation. People ex rei Madigan v. Tang, 346 IlI.App.3d 277,289,

805 N.E. 2d 243, 253-54 (15t Dist. 2004).

In

Tang, the court held that it was insufficient for the

State to simply allege that because an individual was an officer (Chairman and CEO) and

shareholder

of the corporation, he was accountable for the corporation's actions. 346 IlI.App. 3d

at 289.

In

finding the allegations against the defendant in Tang to be insufficient, the court noted

that the allegations were significantly deficient

as compared to the allegations in People ex reI.

Burris v. C.J.R. Processing, Inc., 647 N.E. 2d. 1035,

1038,269 IlI.App.3d 1013, 1018 (3

fd

Dist.

1995), where the corporate officer defendant himself actually operated the facility in question.

Tang, 346 Ill.App. 3d at 289.

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B.

Personal Liability of Shareholders and Officers of CLC

The Board should ignore the State's half-hearted attempt to apply the responsible

corporate offIcer doctrine. The State does not cite any case law from Illinois, and the cases cited

from other jurisdictions are non-precedential and distinguishable. Furthermore, the State boldly

asserts without any citations to any supporting case law that "[t]he responsible corporate officer

doctrine differs from the concept

of

direct

liability because it does

not

require personal

involvement

of the corporate officer." (State's Brief at 7).

An

analysis of the cases cited by the

State does not clearly support

tillS proposition.

The Court

of Appeals of Minnesota did not decide the applicability of the responsible

corporate officer doctrine. State

of Minnesota v. Modern Recycling, 558 NW 2d 770, 772 (Ct. of

Apps. of Minn., 1977).

It

determined tllat the district court erred in addressing the issue of the

officer's personal liability under the doctrine and reversed the judgment against him personally

on procedural grounds, Witllout having made any findings

of fact. Id. at 772-73.

The State also cites State

of Washington. Department of Ecology v. Lundgren, 94 Wash.

App. 236,

971 P.2d 948 (Ct. of Apps. of Wash., 1999) in support of its position. However, tile

court in Lundgren found that the officer "exercised actual hands-on control

of tile facility's

activities." 94 Wash. App. 236, 245,

971 P.2d 948, 953. Additionally, the State fails to note tlmt

Lundgren relies heavily on another case, U.S.

v. Gulf Park Water Co., Inc., 972 F.Supp. 1056

(S.D. Miss. 1997).

Gulf Park found liability where tile officers had "actual hands-on control of

the facility's activities, were responsible for on-site management, corresponded with regulatory

bodies, and were directly involved

in the decisions concerning environmental matters." Gulf

Park, 972 F.Supp. at 1064.

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In

Commissioner. Indiana. Dept. of Environmental Management, 755 N.E.2d 556 (S.Ct.

Ind. 200 I), again, the Court relied heavily on the officer's admission that he was the responsible

party, as well as his direction

of and involvement in operating the landfilL 755 N.E.2d 556, 561.

Finally, in BEC

Com.

v. Dept. of Environmental Protection, 256 Conn. 602, 775 A,2d

928

(Sup.

Ct. of Conn. 2001), wlnle the Court found liability against the defendant purportedly based on

the responsible corporate officer doctrine, the Court also emphasized and relied upon

the facts

that the corporate officer that exercised control over the site directly participated in decisions as

to the use, repair and maintenance

of the facility, and was present at the site no fewer than five

days per week. 775 A.2d at 626.

The State has not presented a clearly articulated difference between the active

participation standard currently applied

by Illinois Courts and the responsible corporate officer

doctrine it suggests that Board follow without providing any reasons as to why. Therefore, the

Board should not follow the State's vague suggestion.

IV.

THERE IS NO PERSONAL LIABILITY OF THE PRUIMS FOR THE

OVERHEIGHT VIOLATIONS AND NOMINAL PENALTY, IF ANY, SHOULD

BE ASSESSED AGAINST CLC

A.

No Liability for Robert and Edward Pruim for the Alleged Overheight

Violations.

1.

Review of the Alleged Overheight Violations.

Overheight violations, alleged in both cases PCB 97-193 and PCB 04-207 are identicaL

Count VII alleges that CLC and the Pruims deposited waste

in

unpermitted portions of the

landfill and that as

of 1999 portions of Parcel B exceeded the permitted elevation of 580 above

sea level; Count VIII, based on the same overheight violations, alleges that the Pruims and CLC

conducted waste disposal operations without a permit; Count

IX

is based on the same allegations

and alleges open dumping; and, Count

X

is based on the same allegations and alleges that both

14

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the shareholders and the corporation failed to obtain pennits to fill Parcel B above 580 above sea

level.

The Board has found against

CLC as a corporation on the issue of liability and deferred

for hearing the issue

of penalty. The issues of both liability and penalty for these counts are still

contested against Edward and Robert Pruim. The evidence in this case

is insufficient to establish

the personal liability

of Edward or Robert Pruim. There is absolutely no evidence that the

Pruims had

any personal knowledge of or involvement in any acts resulting in the alleged

overheight

of Parcel B. Therefore, the Board should enter judgment in their favor and against the

State on the issue

of liability. On the issue of penalty, because there was no harm to the

environment, any penalty issued by the Board against the corporation for the overheight violation

should be nominal.

2.

The Standard for Personal Liability

As set forth in Section IILA., above, the standard for personal liability requires actions on

behalf

of the individual defendant that rise above the level of mere management of the

corporation. The individual actor, in order

to be liable for violations of the act, must have had

personal and direct involvement in the specific actions giving rise to the allegations.

It

is not

enough for someone to just fulfill their corporate responsibility

as president or vice president to

sign documents that were submitted to the State.

In

tillS case,

in

order to be found personally

liable, Edward and/or Robert Pruim must have been personally involved in or directly

participated in the acts that allegedly caused Parcel B

of the landfill to exceed its pennitted

height

of 580 feet above sea level. For example, if there was competent evidence that the Pruims

knowingly ordered the landfill operator

to place waste 580 feet above sea level, that is the type of

evidence necessary to establish personal liability.

In

tills case, the only competent evidence is to

15

Electronic Filing - Received, Clerk's Office, May 4, 2009

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the contrary - the Pruims did not know of, let alone order, waste to be placed above 580 feet.

The law that supports this position

is set forth in Section IILA., above and will not be rehashed

here.

An

application of the facts of this case to the legal standard for personal liability confirms

that neither Robert nor Edward Pruim are personally liable for any allegations with respect to the

overheight

of Parcel B in Morris Community Landfill.

3.

Based on the Totality of the Evidence, the State has Failed to Meet its

Burden to Establish Personal Liability of Edward aud Robert Pruim

for the Overheight Violations.

None of the State's witnesses could testify that Edward or Robert Pruim had direct or

personal involvement in allegedly filling Parcel

B above 580 feet above sea level. (Tina

Kovasznay, Dec.

2, 2008, pp. 44, 48, 51, 59, 79-80; Warren Weritz, Dec. 3, 2008, pp. 85,90-91,

92,93,94, 101-102; Christine Roque, Dec. 2, 2008, pp. 79-80; Ellen Robinson, Dec. 3, 2008, p.

39; Gary Styzens, Dec. 2, 2008, pp. 197-98) The sole basis of the State's personal liability case

against Edward and Robert Pruim are two annual landfill certification reports, one signed by

Edward Pruim

and one signed by Robert Pruim. (See Complainant's Trial Exhibits 14(d) and

14(e)). Exhibit 14(d) is a January

1995 annual landfill capacity certification for Parcel B of

Morris Community Landfill. The document indicates that there was no remaining capacity in

Parcel

B as of January 1, 1995 and the document is signed by Edward Pruim as secretary of

CLC, Robert Feeney as the Mayor of Morris, and Doug Andrews, environmental engineer.

Exhibit 14(e)

is a January 1996 landfill capacity certification which indicates that as of January

1996, zero remaining capacity in the landfill existed, yet 540,135 cubic yards of waste had been

deposited in the landfill during the

1995 calendar year. On the basis of these reports, the State

theorizes, alleges and claims that Edward and Robert Pruim had direct and personal involvement

in filling the landfill above the

580 foot level.

16

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However, the real evidence in this case establishes the contrary. Edward Pruim stated

that he had absolutely no lmowledge

of any alleged overheight of Parcel B of the landfill until

they received notice from the State. (Edward Pruim, December 4, 2008, p. 82). Both Robert and

Edward Pruim testified that while they signed the landfill certification reports, they signed them

as corporate officers and not in their individual capacity. (Robert Pruim, Dec. 4, 2008, p. 47,

Edward Pruim, Dec. 4, 2008, p. 76).

Robert Pruim specifically testified that at the time he

signed the landfill certification reports, he contested that there was zero remaining capacity in

Parcel

B. (Robert Pruim, Dec. 4, 2008, p. 48). He stated that the landfill certification reports

were prepared by Andrews Engineering, and that he disputed engineer Vince Madonia's

statement that there was no remaining capacity in Parcel

B. (Robert Pruim, Dec. 4, 2008, p. 48).

He testified that Madonia advised him that there was a discrepancy in amount

of remaining

capacity in the landfill due to compaction ratios and other factors, and that the discrepancy would

be adjusted in future annual capacity reports. (Robert Pruim, Dec.

4, 2008, p. 48).

Robert Pruim, Edward Pruim and Jim Pelnarsh all state that they do not believe that

Parcel B

of the landfill is filled above its permitted capacity, even today. (Robert Pruim, Dec. 4,

2008, pp. 47-48; Edward Pruim, Dec. 4, 2008, p. 78; Jim Pelnarsh, Dec. 4, 2008, pp. 24 and 26).

The Pruims and Jim Pelnarsh all testified that there is substantial additional permitted capacity

where the office and garage building is and off to the east side

of Parcel B Gust over the hill) of

the landfill. (Robert Pruim, Dec. 4, 2008, pp. 48; Edward Pruim, Dec. 4, 2008, p. 78-79; Jim

Pelnarsh, Dec.

4, 2008, pp. 30-31). Also, as testified to by Robert Pruim, in the 1997 landfill

capacity certification, which covered remaining capacity for both Parcels A and

B, the capacity

adjustment Mr. Pruim discussed with engineer Madonia was made. (See Complainant's Trial

Exhibit

14(±); Robert Pruirn, Dec. 4, 2008, pp. 49-50). As identified in Exhibit 14(±), as of

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February 1997, there was more than 1.7 million cubic yards of remaining landfill capacity in

both Parcels A and B. Edward Pruim estimates that the remaining capacity in Parcel B today

would be in the range

of 100,000 - 200,000 cubic yards. (Edward Pruim, Dec. 4, 2008, p. 79).

The State's post-hearing brief criticizes Robert Pruim's denials as not credible. (See Post-

Hearing Brief at pp. 16-18). To the contrary, Hearing Officer Halloran, who has presided over

this case for many years, found there to be no issue regarding credibility

of witnesses. (Hearing

Officer Halloran, Dec. 4, 200S,

p. 12S). Moreover, the State's criticisms of Robert Pruim are

more fluff than substance. The State presents absolutely no evidence to rebut Robert Pruim's

contention that he disputed the landfill capacity reports at the time that they were signed, that

Vince Madonia advised

him

that there were mathematical errors that would be corrected, and

that indeed on the 1997 landfill capacity certification adjustments were made to show

that more

than 1.7 million cubic yards

of air space remained at the landfill. (Comp. Exh. 14(f). The Board

must also consider that there has never been any actual

proof submitted that Parcel B of the

landfill is overheight or that there is not any remaining capacity at Parcel

B. Both Robert and

Edward Pruim testified that no one has ever provided them with any empirical proof that any

waste was placed above its permitted height. (Robert Pruim, Dec. 4, 2008, p. 68; Edward Pruim,

Dec.

4, 2008, p. 80-81). Indeed, Jim Pelnarsh, Edward Pruim and Robert Pruim testified as to

specific areas on Parcel B where substantial permitted waste volume still exists. (Robert Pruim,

Dec. 4, 2008, pp. 48; Edward Pruim, Dec. 4, 2008, p. 78-79; Jim Pelnarsh, Dec. 4, 2008, pp. 30-

31).

It

is interesting to note that the government hired Rapier Surveyors to determine whether

or not the landfill was filled above its permitted elevation capacity. Because the Rapier Survey

report only found that there was 66,589 cubic yards

of material filled above the permitted

18

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elevation height of the landfill, the State elected not to use the Rapier Survey and corresponding

report

as evidence at the hearing.

It

was CLC that brought this report to the Board's attention and

submitted it as an exhibit. (Resp. Exh. 11). To date, there has been absolutely

no empirical proof

of any kind that Parcel B of the landfill was actually filled above 580 feet above sea level or

otherwise filled above its permitted capacity. Capacity reports upon which the State rests the

entirety

of its case do not talk about permitted elevations or any amount of waste filled above the

permitted elevation. The landfill certification reports, signed by Robert and Edward Pruim, are

not sufficient

to establish personal liability of Robert and Edward Pruim for Counts VII through

X regarding the overheight.

On the flip side, evidence presented by Community Landfill Corporation and the Pruims

is uncontested that the Pruims did not have direct and personal involvement in the alleged

overheight violations. The evidence at the hearing in this case established:

1)

Not one of the State's witnesses had any evidence that Edward or Robert Pruim

had personal involvement or active p.articipation in

any of the alleged violations.

(Tina Kovasznay, Dec.

2, 2008, pp. 44, 48, 51, 59, 79-80; Warren Weritz, Dec. 3,

2008, pp. 85, 90-91, 92, 93, 94, 101-102; Christine Roque, Dec. 2, 2008, pp. 79-

80; Ellen Robinson, Dec.

3, 2008, p. 39; Gary Styzens, Dec. 2, 2008, pp. 197-98)

2)

The Pruims both denied that they had personal involvement or direct participation

in any

of the allegations at issue. (Robert Pruim, Dec. 4, 2008, pp. 54-63; Edward

Pruim, Dec.

4, 2008, pp. 93-100)

3)

The day-to-day operation of the landfill was conducted by site operator Jim

Pelnarsh. (Jim Pelnarsh,

Dec. 4, 2008, p. 28; Robert Pruim, Dec. 4, 2008, pp. 39,

52-53)

4)

Pelnarsh made the decision on where, when and how

to place waste on Parcels A

and

B. (Jim Pelnarsh, Dec. 4, 2008, p. 27)

5)

The government inspectors never dealt with Edward or Robert Pruim - their on-

site contact was Jim Pelnarsh. (Tina Kovasznay, Dec.

2, 2008, pp. 22, 42, and 43;

Warren Weritz, Dec. 3, 2008, pp. 61, 78, 83-84; Mark Retzlaff, PCB 01-170,

Vol.

I, Oct. 15,2001, pp. 66-69)

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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6)

The Pruims had no involvement in the day-to-day operations of CLC - that was

Jim Pelnarsh. (Robert Pruim, Dec.

4, 2008; pp. 39, 52-53; Jim Pelnarsh, Dec. 4,

2008, pp. 27-28)

7)

To the extent they signed permit applications and landfill capacity reports it was

as corporate officers and merely a normal part

of their corporate officer

responsibility. (Edward Pruim, Dec.

4, 2008, pp. 74, 76, 86)

8)

To the extent they arranged for financial assurance

it

was as corporate officers

and merely a normal part

of their corporate officer responsibility. (Robert Pruim,

Dec.

4, 2008, pp. 60-61; Edward Pruim, Dec. 4, 2008, pp. 73-74, 83)

9)

There was no directive from Robert or Edward Pruim to Jim Pelnarsh to place

waste above permitted capacity. (Jim Pelnarsh, Dec.

4, 2008, p. 26; Robert Pruim,

Dec.

4, 2008, p. 62; Edward Pruim, Dec. 4, 2008, p. 82)

Couple this evidence with the fact that the Pruims were not even aware that the landfill

was allegedly overheight, let alone had direct and personal involvement in the decision

to

overfill the landfill. Simply stated the State's evidence falls far short of the standard necessary to

establish personal liability. The Board should enter a finding in favor

of Edward and Robert

Pruim and against the State on the issue of liability for the alleged overheight violations (Counts

VII through X

of both complaints.)

B.

Overheight Violations.

Even assuming, arguendo, that the Board finds liability in favor of Robert and Edward

Pruim, there should be no penalty assessed against them personally. Any benefit that allegedly

was gained by the overheight violations

is gained by the corporation and not the Pruims

individually. Furthermore, once the matter was brought

to their attention, even though they did

not believe that the landfill was either overheight or overfilled, they ordered Jim Pelnarsh to

move substantial amounts

of the waste at the top of Parcel B over to Parcel A at great expense.

(Edward Pruim, Dec. 4, 2008, p. 81-82; Jim Pelnarsh, Dec. 4, 2008, pp. 31-32). Furthermore, the

State failed to present any evidence

of any environmental harm that has been occasioned by the

20

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alleged overheight

in

Parcel B. In fact, if Parcel B's overheight was ever proposed to be moved

over to Parcel A, substantially more potential environmental harm would occur due to moving

the waste than just leaving it in place.

V.

The Board Should Not Find Liability Against CLC for Part of Count XIX (Enf. 97-

193)

or Liability Against the Pruims for Count XVII (Enf. 04-207)

Count

XIX of the State's Complaint against CLC (Enf. 97-193) alleges that CLC is liable

for failing to increase financial assurance pursuant to Condition

# 13 of Permit 1996-240-SP

(October 24, 1996). Count

XVII of the State's complaint against CLC (Enf. 04-207) alleges

liability against the Pruims for the same violation.

There are two parts to the State's allegations: The first part addresses an alleged failure to

increase financial assurance form $1,342,500 to $1,431,600 by January 22, 1997. The Board

ruled in favor

of the State against CLC on liability. At issue here for that part is liability against

the Pruims and a penalty against both CLC and the Pruims,

if liability is found, which the Pruims

maintain it should not be. The second part is whether CLC and the Pruirns failed to increase

financial assurance from $1,431,600 to $1,439,720 prior to operation

of the gas collection

system. At issue is both liability and penalty against CLC and the Pruims

if liability is found,

which again, the Respondents maintain it should not be.

A.

A

Minimal Penalty Should be Assessed Against CLC and the Pruims Should

Not Be Found Liable for Failure to Increase Fiuancial Assurance from

$1,342,500 to $1,431,600 by January 22, 1997.

The Board has already found liability against CLC for this part

of Count XIX. A minimal

penalty should be assessed against CLC for failing to increase financial assurance from

$1,342,500 to $1,431,600 by January 22, 1997. The time period was short and the amount was

small.

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It

should not fmd liability against the Pruims for violations alleged in Count XVII of PCB

04-207. The evidence has shown that while respondents Robert and Edward Pruim were

responsible for maintaining financial assurance for the landfill, they did

so only in their capacity

as officers of the corporation and not on behalf of themselves individually. (Robert Pruim, Dec.

4,2008, pp. 60-61; Edward Pruim, Dec.

4, 2008, pp. 73-74). Furthermore, neither of them had

any direct or personal involvement in the allegations that they failed to provide financial

assurance. (Robert

Pruim, Dec.

4, 2008, p. 60; Edward Pruim, Dec. 4, 2008, p. 99). TIllS part of

Count VII of PCB 04-207 should be dismissed against the Pruims individually.

B.

The State Has Failed to Prove that the Gas Collection System was

in

Operation Prior to a Required Increase

in

Financial Assurance.

On October 3, 2002, the Board denied the State's motion for summary judgment as to an

alleged failure to raise the fmancial assurance prior to operation

of the gas management system,

finding a genuine issue

of material fact as to when it began to operate. (See Board Order dated

October 3, 2002, pp. 20-21). Because the State has failed to prove when the system began to

operate, the Board should not find liability against either CLC or the Pruims on this issue.

Consequently, no penalty should be assessed.

The sole evidence presented by the State in support

of this part of Count XIX (against

CLC in Enf. 97-193) and Count XVII (against the Pruims in 04-207)

is that on March 31, 1999

Inspector Tina Kovasznay "observed" the gas collection system in operation. (Tina Kovasznay,

Dec.

2, 2008, p. 26). However, site manager Jim Pelnarsh testified that KMS was simply testing

the engine and that he did not recall telling the inspector that the system was running. (Jim

Pelnarsh, Dec.

4, 2008, p. 23). He also made the same statement in his affidavit submitted in

CLC's response to the State's Motion for Summary Judgment on March I, 2002. (See

Respondent's Trial Exlllbit

9, Affidavit of James Pelnarsh, at para. 13). Jim Pelnarsh testified

22

---

that the statements in his affidavit are still true today, in spite of the State's attempt to discredit

him. (Jim Pelnarsh, Dec. 4, 2008, pp. 32-33). Inspector Kovasznay testified that she has no

other evidence

of the gas system running other than merely hearing the engines. (Tina

Kovasznay, Dec.

2, 2008, pp. 47-48).

Nothing has changed since the Board denied the State's Motion for Summary Judgment

on October

3, 2002. Hearing Officer Halloran found no issues with the credibility of any of the

witnesses. (Dec.

4, 2008, p. 128). The State has offered nothing new to support its allegations.

The State has again failed to prove its case against CLC in regard to this part

of Count XIX in

PCB 97-193. Since liability should not be found against CLC for this part of Count XIX in PCB

97-103 relating

to the operation of the gas collection system, the Pruims should not be found

liable for this part of Count XVII in PCB 04-207 also relating to the operation of the gas

collection system.

Regardless

of any liability found against CLC (for which none should be), the Pruims

should in

no way be held liable since they had nothing to do with the operation of the gas

collection system. The testimony established the following:

.No one except landfill site manager Jim Pelnarsh ever accompanied Tina Kovasznay

on

an inspection, including Robert or Edward Pruim. (Tina Kovasznay, Dec. 2, 2008, pp. 42-

43).

.Tina Kovasznay has

no evidence that Robert or Edward Pruim had any personal or

direct involvement with the operation

of the landfill, specifically with the alleged

violation

of running the gas system. (Tina Kovasznay, Dec. 2, 2008, pp. 44 and 48).

.Jim Pelnarsh was the operator

of the landfill and made the day to day decisions with

respect to the operation

of the landfill since 1983. (Jim Pelnarsh, Dec. 4, 2008, p. 28).

.KMS put in the gas collection system and Robert Pruim expected that

KMS was going

to

be increasing the fmancial assurance. (Robert Pruim, Dec. 4, 2008, pp. 50-52) .

• Robert Pruim had no direct or personal involvement in the allegations that he failed to

provide fmancial assurance. (Robert Pruim, Dec.

4, 2008, p. 60).

23

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• Edward Pruim agreed that he understood that KMS was responsible for financial

assurance. (Edward Pruim, Dec.

4, 2008, pp. 98-99) .

• Edward Pruim had

no direct or personal involvement in the allegations that he failed to

provide financial assurance. (Edward Pruim, Dec.

4, 2008, p. 99).

The State has failed to make its case against the Pruims individually in PCB 04-207for

any alleged failure to obtain financial assurance prior

to the operation of the gas collection

system. This part

of Count XVII should be dismissed against the Pruims.

VI.

The Board Should Rule that Neither CLC Nor the Pruims are Liable for Daily

Operation Violations

at the Landfill as Alleged in PCB 97-193 Against CLC (Counts

I,

II and VI) and in PCB 04-207 Against the Pruims (Counts I, II, III, VI and XII).

Additionally, Although Liability

Has Been Found Against CLC for Counts III and

XIII (pCB 97-193), the Board Should Not Find any Liability Against the Pruims for

Counts

III and XII (pCB 04-207).

On October 3, 2002, the Board denied the State's Motion for Summary Judgment Against

CLC in regard to Counts

I, II and VI in 97-193. The State's evidence presented at hearing is

woefully inadequate to support a finding of liability against either CLC or the Pruims, as set

forth in detail below.

A.

Count I Against CLC (Enf. 97-193)

The State has failed to prove that refuse and litter were inadequately managed. The State

introduced five

(5) inspection reports in its attempt to prove inadequate management of refuse

and litter. Warren Weritz testified

as follows in regard to his inspections on these dates:

24

Electronic Filing - Received, Clerk's Office, May 4, 2009

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1.

April 7, 1994

.He did not return at the end

of the day or observe conditions at the end of

the day. (Warren Weritz, Dec. 3, 2008, pp. 87,98)

.His pictures show bags

of litter which are an attempt to control litter

(Warren Weritz, Dec.

3, 2008, pp. 87-89)

'He has no idea whether the uncovered litter he saw on April 7, 1994 was

there at the end

of the day because he never returned. (Warren Weritz,

Dec. 3, 2008, pp. 89,98)

2.

March 22, 1995

• He did not return at the end

of the day or observe conditions at the end of

the day. (Warren Weritz, Dec. 3,2008, pp. 91, 98)

• He has no independent evidence that the uncovered litter he saw on

March

22,1995 was not covered by the end of the day. (Warren Weritz,

Dec. 3, 2008, p. 92)

3.

May 22, 1995

.He did not return at the end

of the day or observe the site conditions at

the end

of the day. (Warren Weritz, Dec. 3, 2008, pp. 92, 98)

• He has

no independent evidence that the uncovered litter he saw on May

22, 1995 was not covered at the end of the day. (Warren Weritz, Dec. 3,

2008, pp. 92-93)

4.

July 28, 1998

.He did not return at the end

of the day or observe the site conditions at

the end

of the day. (Warren Weritz, Dec. 3, 2008, pp. 93, 98)

• He has no independent evidence that the uncovered litter he saw during

the July 28, 1998 inspection was not covered by the end

of the day.

(Warren Weritz, Dec.

3, 2008, pp. 93-94)

Tina Kovasznay testified as follows in regard to her inspection on the following date:

5.

March 31, 1999

.She did not observe the site conditions at the end

of the day. (Tina

Kovasznay, Dec.

2, 2008, p. 44)

25

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Conversely, Jim Pelnarsh testified at hearing that he did not advise Warren Weritz that

they were not picking up litter

at the end of the day. (Jim Pelnarsh, Dec. 4, 2008, p. 19). He

stated in his affidavit that it has been the practice

of CLC to collect blowing litter by the end of

each operating day and that they employed persons whose primary job was to pick up litter on

days when the weather conditions create blowing litter.

(Affidavit

of James Pelnarsh,

Respondent's Exh. 9, paragraph 4). Clearly, the State has failed to establish that CLC should be

found liable for a failure to adequately manage litter and refuse since it has not - and never could

- prove that any litter was left uncovered

at the end of the day.

B.

Counts II and VI Against CLC (97-193)

The State has not proven a failure to prevent or control leachate or proven water

pollution. The State has not established the existence

of water pollution. The definition of water

pollution

is:

such alteration of the physical, thermal, chemical, biological or radioactive

properties

of any waters of the State, or such discharge of any contaminant into

any waters

of the State, as will or is likely to create a nuisance or render such

waters harmful or detrimental or injurious to public health, safety or welfare, or

to

domestic, commercial, industrial, agricultural, recreational, or other legitimate

uses, or to livestock, wild animals, birds, fish, or other aquatic life. (415 ILCS

5/3.545)

The State introduced three (3) inspection reports in its attempt

to prove a failure to

prevent or control leachate. Warren Weritz testified specifically that on April

7, 1994, he had no

independent evidence that the leachate seeps he saw on that date were not fixed by the end of the

day. (Warren Weritz, Dec.

3, 2008, p. 90). He also testified that it happened that the seeps that he

had seen on one occasion would be corrected the next time

he came back. (Warren Weritz, Dec.

3,2008,

p. 99). Further, Mr. Weritz testified generally at the inspections on April 7, 1994, March

22, 1995 and May 22, 1995 as follows:

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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oHe never obtained samples of any material he said was leaving the site. (Warren

Weritz, Dec. 3, 2008, pp. 95-96)

oHe didn't take any samples or make any test of the material that he allegedly saw

in the water. (Warren Weritz, Dec.

3, 2008, p. 101)

o He performed no testing on the alleged leachate

he saw on the retention pond

other than his observation. (Warren Weritz, Dec. 3, 2008, pp. 96-97)

oHe never actually saw "reddish, oily liquid" actually leave the landfill site.

(Warren Weritz, Dec.

3, 2008, p. 97)

o He has never seen naturally occurring runoff from iron ore deposits and has

no

idea whether they would be red in color. (Warren Weritz, Dec. 3, 2008, pp. 97-98)

oBeyond his observation, he has no evidence that there were any contaminants

in

the water. (Warren Weritz, Dec. 3,2008, p. 97)

o He did not take any measures

to determine whether the material he saw in the

ditch would be harmful or detrimental or injurious to the public health and safety,

or to the domestic, commercial, industrial, agricultural, recreational or legitimate

uses, or to livestock, wild animals, birds, fish or other aquatic life. (Dec.

3,2008,

p.98)

Conversely, site manager Jim Pelnarsh testified as follows:

o He did not agree with Weritz that leachate was present because leachate is black

and this liquid was brownish water from strip mines and other excavations. The

landfill across the street and all the strip mines in the area had brown water. (Jim

Pelnarsh, Dec. 4, 2008, pp. 20-21).

oThe excavations where he saw the water had a slight odor of rotten egg. (Jim

Pelnarsh, Dec. 4, 2008, p. 21).

In

addition, in his affidavit, Jim Pelnarsh stated as follows:

o He was familiar with the north perimeter ditch at the landfill, having performed

maintenance work including excavating it to make sure it was clean and free

of

sediment. At various times he observed a brownish/reddish staining to the water

in this ditch

as well as other areas around the City of Morris. The stain comes

from natural deposits

of iron ore present in the soil and not from anything

emanating from or caused by the landfill. (Affidavit

of Jim Pelnarsh,

Respondent's Exh.

9, paragraph 8).

oNot only did he disagree with Mr. Weritz that the reddishlbrown stain was

leachate, he specifically advised

Mr. Weritz that it was rusty or orange colored

27

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water from iron ore deposits. (Affidavit of Jim Pelnarsh, Respondent's Exh. 9,

paragraph 8).

Clearly, the State has failed to establish that CLC should be found liable for a failure to

prevent or control leachate or the existence

of water pollution. The State has not established that

the material allegedly observed actually was leachate or that any alleged leachate seeps were not

fixed by the end

of the day. Significantly, the State failed to introduce any evidence to support

the allegations

of water pollution as it is defined in the Act. (415) ILCS 5/3.545). In addition to

not proving the presence of leachate, no testimony was heard that a nuisance was or was likely

created, nor that the waters

of the State were rendered harmful or detrimental or injurious to the

public health, safety or welfare, or to any other uses such

as commercial or agricultural, or to any

other life forms, including aquatic or other. AIl

ofthis is needed for a finding of water pollution.

In short, the State has utterly failed

to prove its case. Therefore, the Board should rule that there

is no liability for CLC in regard to Counts

II and VI (Enf. 97-193).

C.

Counts

III

and XIII Against CLC (pCB 97-193)

The Board has already found liability against CLC for failure to properly dispose

of

landscape waste and improper disposal of used tires. However, Warren Weritz testified that he

has no evidence that the landscape waste and tires he observed were still there at the end of the

day. (Warren Weritz, Dec.

3, 2008, p. 94). Any penalty assessed against CLC should be

minimal for these one-time violations.

D.

No Liability Against Edward and Robert Pruim for Counts I, II, III, VI and

XII (pCB

04-207)

The State seeks a finding

of liability against Robert and Edward Pruim for Counts I, II,

III, VI and XII in PCB 04-207 based on the responsible corporate officer doctrine. However,

as

set forth in Section IILB., above, this doctrine is not applicable to establish personal liability of

28

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the Pruims. In support of its theory, the State cites Commissioner. Dept. of Environmental

Management

v. RLG. Inc., 755 N.E.2d 556 (Ind. 2001). In that case, the Court found that it was

the officer's direction

of and involvement in operating the landfill" and his "actual role" in the

corporation's activities to be critical. RLG. Inc. at 562. The Court also found that it

was the

officer's acts that facilitated the violation. Id.

None

of these elements are present here. In testimony regarding the daily operation

violations, individuals testified

as follows:

Tina Kovasznay testified:

.Site manager Jim Pelnarsh was the person she dealt with and who accompanied

her on inspections; no one else did. (Tina Kovasznay, Dec. 2, 2008, pp. 22, 42)

.She was never accompanied by either Robert or Edward Pruim.

(Tina Kovasznay, Dec.

2, 2008, p. 43)

Warren Weritz testified:

.Site manager Jim Pelnarsh accompanied him on almost every inspection (except

for one). (Warren Weritz, Dec.

3,2008, p. 83)

.He was never accompanied by Edward Pruim or Robert Pruim and never saw

either

of them at the landfill. (Warren Weritz, Dec. 3, 2008, p. 84)

Jim Pelnarsh testified:

.He made the day-to-day decisions with regard to the operation

of the landfill and

had since 1983. (Jim Pelnarsh, Dec. 4, 2008, p. 28)

• He did not have to talk to Robert or Edward Pruim to decide where to place any

waste. (Jim Pelnarsh, Dec. 4, 2008,

p. 27)

Robert Pruim testified:

• He did not manage the day-to-day operations

of the landfill. (Robert Pruim, Dec.

4,2008, pp. 52-53)

.He had no direct or personal involvement in any of the allegations related to the

daily operation violations

in Counts I, II, III, VI and XII in PCB 04-207. (Robert

Pruim, Dec. 4, pp. 54-56, 58)

29

---

Edward Pruim testified:

-Jim Pelnarsh, site manager, certified by the State

of Illinois, made the day-to-day

decisions with regard to the management

of the landfill from 1983 to the present.

(Edward Pruim, Dec.

4, 2008, p. 94)

-He had no direct or personal involvement in any

of the allegations related to the

daily operation violations in Counts

I, II, III, VI and XII in PCB 04-207. (Edward

Pruim, Dec. 4, pp. 93-94, 96, and 98)

Neither Robert nor Edward Pruim should be found liable for any alleged violations in Counts

I,

II, III, VI and XIII since they had nothing to do with the daily management of the landfill.

VII.

ADDITIONAL VIOLATIONS ALLEGED ONLY AGAINST CLC

A.

Count XV (pCB 97-193)

Violation

of Permit Condition #1 (1996-240-SP)

Hearing on Count XV against CLC only was on both liability and penalty. As was the

case with Count XIX against CLC in PCB 97-193 and Count XVII against the Pruims in PCB

04-207, the issue before the Board

is when did the gas management system begin to run. The

Board denied summary judgment on this issue, finding a genuine issue

of material fact. (See

Board Order, Oct. 4, 2002, PCB 97-193, p. 16).

As stated in Section VI-B above, the State has failed to prove its case. All the State has

presented

is inspector Tina Kovasznay's testimony (and inspection report) stating that on March

31, 1999 she "observed" the gas collection system running because she "heard" engines running.

(Tina Kovasznay, Dec. 2, 2008, pp. 26-27 and 47). That's it. That is the State's only evidence.

In contrast, site manager Jim Pelnarsh testified that KMS was simply testing the engine

and that

he did not recall telling inspector Kovasznay that the system was operating. (Jim

Pelnarsh, Dec. 3, 2008, p. 23). Significantly, Ms. Kovasznay admitted in her testimony that she

does not know much about the mechanics

of the gas system and that she has no otller evidence of

30

Electronic Filing - Received, Clerk's Office, May 4, 2009

---

the gas system running other than hearing the engines. (Tina Kovasznay, Dec. 2, 2008, pp. 47-

48).

Clearly, the

State has not proven its case that the gas collection system was in operation

in violation

of Permit Condition #1 (1996-240-SP). There is no question that Mr. Pelnarsh's

testimony is credible, as was found by Hearing Officer Halloran, in spite

of the State's attempt to

raise it

as an issue. (Dec. 4, 2008, p. 128; State's Brief, p. 39). The Board should find CLC is

not liable for the violation alleged in Count XV (PCB 97-193).

B.

Count

XVII

(pCB 97-193)

Violation

of Permit Condition #11 (1996-240-SP)

Hearing on Count XVII against CLC only was on both liability and penalty. At issue is

whether CLC was using leachate pumped from the landfill to increase the moisture content

of

new waste disposal cells on March 31, 1999 and July 20, 1999.

The State has failed to prove its case. All it has in support are statements by inspector

Tina Kovasznay that site manager Jim Pelnarsh allegedly told her that leachate was being placed

into the clay used for liners. (Tina Kovasznay, Dec.

2, 2008, pp. 26 and 37). That's it. That is

the State's only evidence.

In contrast,

Mr. Pelnarsh testified in his affidavit dated March I, 2002, that he did not

inform Ms. Kovasznay that he was placing leachate in Parcel A; rather,

he advised her that he

was pumping stormwater from a retention pond on the north side

of Parcel A to add to moisture

content. (See Respondent's Trial Exhibit

9, Affidavit of James Pelnarsh, at para. 11). Mr.

Pelnarsh testified at the hearing that he believed that the information he swore to in his affidavit

in March 2002 was still true. (Jim Pelnarsh, Dec.

4, 2008, p. 33).

Clearly, the State has not proven its case that CLC was using leachate pmnped from the

landfill on March 31, 1999 and July 20, 1999. There is no question that

Mr. Pelnarsh's

31

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testimony is credible, as was found by Hearing Officer Halloran, in spite of the State's attempt to

raise it as an issue. (Dec.

4, 2008, p. 128, State's Brief, p. 39). The Board should find that CLC

is not liable for the violations alleged in Count XVII (pCB 97-193).

C.

Count XX (pCB 97-193)

Violation

of Permit Condition #17 (1996-240-SP)

The State has requested that Count XX (PCB 97-193) be dismissed against CLC since it

entered no evidence at hearing on this count.

D.

Count

XIV

(pCB 97-193)

Violation

of Permit Condition #13 (1989-00S-SP)

On October

3, 2002, the Board granted summary judgment in favor of the State against

CLC on Count XV (pCB 97-193) for a failure to use movable fencing on March 31, 1999 and

July 20, 1999. (See Board Order, Oct. 4, 2002, PCB 97-193, p. 15). This is a very minor

violation.

If the Board deems a penalty appropriate, it should be for a nominal amount.

E.

Count XVI (PCB 97-193)

Violation of

Permit Condition #9 (1996-240-SP)

On October 3, 2002, the Board granted summary judgment in favor of the State against

CLC on Count XV (PCB 97-193) for a failure to talee corrective action on March 31, 1999 and

July 20, 1999. (See Board Order, Oct. 4, 2002, PCB 97-193, p. 15). This is a very minor

violation.

If the Board deems a penalty appropriate, it should be for a nominal amount.

VIII. REQUESTED REMEDY

The Respondents request that the Board assess a total civil penalty of no more than

Twenty-Five Thousand Dollars ($25,000.00) against Respondent

CLC for the violations in PCB

97-193 and no penalty ($0) against respondents Robert and Edward Pruim in PCB 04-207.

32

Electronic Filing - Received, Clerk's Office, May 4, 2009

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A.

An Analysis of the 33( c) factors Suggest a Minimal Civil Penalty

33( c)(i):

The character and degree of injury to, or intelference with the protection

of the health, general welfare and physical property of the people;

Contrary to the State's assertion, the evidence shows no injury to the general welfare. No

evidence whatsoever was presented from any expert or lay witnesses

of any interference with the

health, or welfare

of the general public. The State failed to prove its case in regard to water

pollution as alleged in Count VI.

It

is immaterial to this proceeding whether any other

proceeding is pending before the Board.

33( c)(ii):

The social and economic value of the pollution source;

Again, the State makes broad, sweeping statements in regard to this factor which are not

supported by any evidence presented at the hearing. The State did not present any evidence

concerning the social and economic value

of the pollution source.

33( c)(iii):

The suitability or unsuitability of the pollution source to the area in which

it is;

The State mal(es the conclusory statement that the landfill is not suitable to the area

where it

is located, without having presented a shred of evidence to support it. The State did not

present any evidence in regard to the suitability or unsuitability

ofthe pollution source.

33(c)(iv):

The technical practicability and economic reasonableness of reducing or

eliminating the emissions, discharges or deposits resulting from such

pollution source.

While the State comments that operating a landfill in accordance with regulations is

"technically practicable and economically reasonable", this is generally true. However, there are

numerous reasons why this

is not the case in the present matter. First and foremost, the Agency

33

Electronic Filing - Received, Clerk's Office, May 4, 2009

---

itself denied CLC's operating permit which would have allowed it to continue accepting waste

and therefore generate income necessary. CLC has done everything it could for years to attempt

to bring the landfill into compliance, in spite

of difficulties.

33(c)(v):

Any subsequent compliance.

Again, the State presented no evidence at this hearing of any current non-compliance.

Any other proceedings currently pending are irrelevant to this proceeding.

Summary

of

33(c) Factors

Based on

an evaluation of the 33(c) factors, Respondents believe that a penalty of no

more than Twenty-Five Thousand Dollars ($25,000.00) against CLC for violations in PCB 97-

193 would be sufficient and reasonable in order to accomplish the purposes of the Act and Board

landfill regulations.

B.

Analysis

of

the 42(h) Factors

42(h)(I):

Duration and Gravity o/the Violation

The State correctly notes that in regard to daily operations, any violations that the Board

deems to have actually occurred, or for which liability has already been determined, are

only

provable on tlle dates of inspection (State's Brief at p. 47). In regard to the counts for which

liability

is at issue, the State has failed to prove its case against CLC on Counts I, II and VI, so

tllese counts should be dismissed. In regard to Counts III and XIII for which liability has already

been determined,

only

a nominal penalty should be assessed.

In regards to tlle alleged overheight violations, in Counts VII

-X

(PCB 97-193 and 04-

207) even though liability has already been determined against CLC, significant testimony was

presented at the hearing which mitigates against the penalty sought by the State.

34

---

First, there are significant questions as to the existence of the overheight. Without

completely rehashing previous sections

of Respondents' Post-Hearing Brief, a summary of the

testimony presented

is as follows:

-No one has ever provided any empirical proof that any waste was placed above its

permitted height. (Robert Pruim, Dec.

4, 2008, p. 68; Edward Pruim, Dec. 4, 2008, pp.

80-81)

-Jim Pelnarsh, Robert Pruim and Ed Pruim all testified

as to specific areas on Parcel B

where substantial permitted waste volume still exists. (Robert Pruim, Dec.

4, 2008, p. 48;

Edward Pruim, Dec.

4, 2008, pp. 78-79; Jim Pelnarsh, Dec. 4, 2008, pp. 30-31)

-Robert Pruim disputed the landfill capacity reports when they were made and Vince

Madonia advised him that the mathematical errors would be corrected. (Robert Pruim,

Dec.

4, 2008, p. 48)

-TIle mathematical errors ultimately were corrected and

it

was determined that more than

1.7 million cubic yards

of air space remained at the landfill. (Robert Pruim, Dec. 4,2008,

pp. 49-50;

Compo Exh. 14(f))

-Neither Robert Pruim, Edward Pruim nor Jim Pelnarsh believe that Parcel B was

overheight and all believe that capacity remains today. (Robert Pruim, Dec.

4, 2008, p.

47, Edward Pruim, Dec. 4, 2008, p. 78; Jim Pelnarsh, Dec. 4, 2008, pp. 24, 26, 30-31)

TIle State says there is no evidence that the overheight violations were ever remedied.

However, testimony was presented at hearing that waste was moved. Jim Pelnarsh testified that

when they were advised that the government was claiming that waste in Parcel B was above the

permitted height, they began taldng some material from Parcel B to Parcel A to use it as daily

cover. He did that for several years on a regular basis and moved

"a lot", which he estimates to

have been 100,000 cubic yards. (Jim Pelnarsh, Dec. 4, 2008, pp. 31-32). Edward Pruim testified

that they rented a truck

to haul some of the material from Parcel B to be used as cover on Parcel

A (Edward Pruim, Dec.

4, 2008, pp. 81-82).

Clearly efforts were made in tins regard. The state

is patently incorrect when

it

says there

is

no evidence that the overheight violations were ever corrected. Because liability has already

35

Electronic Filing - Received, Clerk's Office, May 4, 2009

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been determined against CLC for Counts VII - X in regard to the overheight allegations, a

reasonable penalty should

be assessed against CLC only.

Gravity

The State attempts to quantify the concept of gravity by mentioning the "sheer number"

of alleged violations. However, the Board should not consider simply the number of alleged

violations but instead, look at the factors in 33(c) which relate to the character and degree

of

injury to, or interference with the protection of the health, general welfare and physical property

of the people. As stated above, the State presented absolutely no evidence as to any harm to the

health, general welfare and physical property

of the people that is what the Board should

consider when

it considers "gravity". However, if it considers "sheer numbers" of violations it

should also consider that four

of 22 violations were dismissed against CLC prior to hearing (and

one at hearing) and six

of 19 violations against the Pruims have also been dismissed. (See Exh.

A).

42(h)(2):

The presence or absence of due diligence

011

the part of the Respondent in

attempting to comply with the requirements of this Act and regulations

thereunder or

to secure relieftherefi'om as provided by this Act.

In spite of the State's attempts to portray CLC and the Pruims as not acting diligently, tile

testimony shows that is not the case.

In regard to the 1993 deadline for filing tile SigMod, Edward Pruim testified that in

November 1994, they entered into a lease for Parcel A with the City

of Morris (Dec. 4, 2008, p.

87). CLC was prepared to file tile SigMod and hired Andrews Engineering to do so (Dec. 4,

2008,

p. 88). The Agency rejected tile SigMod because it wasn't submitted on time (Dec. 4,

2008, p. 89). CLC was forced to file for a variance with the Board which upheld the Agency

36

---

decision and denied the variance (Dec. 4, 2008, p. 89). CLC then was forced to proceed in the

Appellate Court which ruled in CLC's favor, allowing CLC to file the SigMod on August 6,

1996 (Dec. 4, 2008, p. 90).

In

regard to not upgrading financial assurance

III

1993, Edward Pruim testified that

between 1993-1996, CLC was not

in

good shape financially but that there was always some

financial assurance in place (Dec.

4, 2008, p. 84). Over time, the financial assurance needed to

be increased, supplemented or replaced and that ultimately happened in 1996 when CLC

obtained

its first Frontier bond for approximately $1.4 million (Dec. 4, 2008, p. 84). CLC

obtained the bond and paid a 2% premium per year but they would have qualified for a lesser

premium if they were in a stronger financial position (Dec.

4, 2008, pp. 84-85). He further

testified that between 1993-1996, they did not ignore the situation, but worked on a constant

basis for the corporation through a broker (Dec. 4, 2008,

p. 85). This shows plenty of diligence.

Finally, much has already been written on the subject of the overheight. To summarize,

the armual capacity certifications were signed by Robert and Edward Pruim in their corporate

capacities. (Edward Pruim, Dec.

4, 2008, pp. 74, 76, 86). As previously and repeatedly stated, no

one with

CLC believed that Parcel B was overheight, and they believed that capacity remains

today. (Robert Pruim, Dec.

4, 2008, p. 47; Edward Pruim, Dec. 4, 2008, p. 78; Jim Pelnarsh,

Dec.

4, 2008, pp. 24, 26, 30-31). In addition, CLC, once it was alerted to the possibility there

was an overheight, made efforts to move waste from Parcel B to Parcel A (Edward Pruim, Dec.

4, 2008, pp. 81-82; Jim Pelnarsh, Dec. 4, 2008, pp. 31-32). TIns shows plenty of diligence.

42(h)(3):

Any economic benefits accrued by the Respondent because of delay in

compliance with requirements, in which case the economic benefits shall

be determined by lowest cost altemative for achieving compliance.

37

---

The State makes much of the amount of money allegedly saved by the Respondents in

this case. However, the testimony presented shows it is not nearly as clear

as the State would

have the Board believe.

In regard to the overheight, Christine Roque testified that the figure

of 475,000 cubic

yards overheight is being used because that was submitted by CLC. (Christine Roque, Dec. 2,

2008,

pp. 84-85). However, she admitted that Rapier Surveying, Inc. was hired by the State to

survey the landfill to determine the amount

of the overheight. (Christine Roque, Dec. 2,

2008,

p.

82). Roque further admitted that in 2000, Rapier determined that the total volume of material

above the permitted capacity was 287,321 cubic yards. (Christine Roque, Dec.

2, 2008, p. 83;

Resp.

Exh. 11). Roque, however, continued to use the figure of 475,000 cubic yards. (Christine

Roque, Dec.

2, 2008, pp. 84-85). The Rapier Report itself further states that the total volume of

material above the permitted maximum elevation of 580 feet was 66,589 cubic yards. (Resp.

Exh. 11).

The State's "expert" witness, Gary Styzens, admitted that tIns figure

of $950,000 (based

on overheight

of 475,000 cubic yards) was provided to him by the Attorney General's office

(Gary Styzens, Dec.

2, 2008, p. 146). He assumed

it

was correct. (Gary Styzens, Dec. 2, 2008,

pp. 146-147). Gary Styzens testified that he was not aware

of the Rapier Report and had never

seen it before. (Gary Styzens, Dec. 2, 2008, pp. 178-79, 183). He testified that the Rapier Report

would have reduced his penalty calculation on the overheight. (Gary Styzens, Dec. 2, 2008, p.

179). Styzens testified that

if the Rapier document was accurate, it would have been

inappropriate for him to apply interest to the entire $950,000.00. (Gary Styzens, Dec. 2, 2008,

p.

184). But, he never saw it. (Gary Styzens, Dec. 2,2008, pp. 178-79, 183).

38

---

Gary Styzens did not "put it all together" as the State attempts to characterize his

contribution. (State's Brief at

p. 50). He testified that he took numbers that were given to him at

face value and did nothing

to recalculate them. (Gary Styzens, Dec. 2, 2008, p. 187). Then he

applied a marginal tax rate to show a reduction

of each of those numbers to which he then

applied a bank prime interest rate. (Gary Styzens, Dec.

2, 2008, pp. 187-188). He did absolutely

nothing mathematically or otherwise

to confirm that the numbers he was given were accurate,

other than to rely upon the professional judgment of the lawyers. (Gary Styzens, Dec. 2, 2008, p.

190). Further, 42(h)(3) does not include the word "interest" and does not require him to apply the

banlc prime interest rate.

In summary, Styzens admitted that the Rapier Report would have reduced his penalty

calculation. (Gary Styzens, Dec.

2, 2008, pp. 178-79, 183). In addition, Christine Roque

acknowledged that Rapier determined the total volume over permitted capacity was 287,321

cubic yards. But,

if Gary Styzens had used the Rapier figure of 66,589 cubic yards for the

overheight, his estimated penalty calculation would have been approximately 14%

of what it

was. (Resp. Exh. 11).

Additionally, the State's witness

Blalce Harris provided Gary Styzens with the figures that

Styzens plugged

in to reach the figure of $47,871.33 in so-called avoided costs for CLC for not

having provided and maintained adequate financial assurance. (Blake Harris, Dec.

2, 2008, p.

95). Harris testified that he used a 2% bond rate to come up with his calculation. (Blalce Harris,

Dec.

2, 2008, p. 96). Harris testified that this was a reasonable cost for a surety bond because it is

the lowest he had ever seen (Blalce Harris, Dec. 2, 2008, p. 100). However, he quickly corrected

his own testimony to state that

in

fact 2% was not the lowest he had ever seen. (Blake Harris,

Dec. 2, 2008, pp. 102-03). He confirmed that the Frontier bonds later issued to CLC in the

39

Electronic Filing - Received, Clerk's Office, May 4, 2009

---

amount of $17 million had premiums of $217 ,000 (approximate) which were issued for 1 .25% in

September 2001. (Blake Harris, Dec.

2, 2008, pp. 102-03, 106; Resp. Exhs. 45, 46, 47, 48 and

49). Therefore,

it

is obvious that he had in his possession by September 2001, information that in

fact the lowest interest rate he had seen was not 2% but was 1.25% (Blake Harris, Dec.

2, 2008,

p. 114). Harris testified that if he had used the 1.25%, that would have reduced his penalty

calculation proportionately. (Blake Harris, Dec.

2, 2008, p. 115).

Gary Styzens testified that he never talked to

Blalee Harris about the amount of money he

used to calculate the penalty for the financial assurance. (Gary Styzens, Dec.

2, 2008, p. 193). He

testified that if the 2% used by Blake Harris could have been lower, that would have affected his

number. (Gary Styzens, Dec.

2, 2008, p. 196). As with the overheight, Styzens did absolutely

nothing mathematically or otherwise to confirm that the numbers he was given were accurate,

other than to rely on the professional judgment

of the lawyers. (Gary Styzens, Dec. 2, 2008, p.

190). Furthermore, testimony was presented at the hearing that even though they did not believe

the landfill was either overheight or overfilled, significant amounts

of waste were moved from

Parcel B to Parcel A at great expense. (Edward Pruim, Dec.

4, 2008, pp. 81-82; Jim Pelnarsh,

Dec.

4, 2008, pp. 31-32). Finally, the State did not present any evidence that any environmental

harm occurred as a result

of any alleged overheight. All of tills evidence (and lack thereot)

should be considered by tile Board in concluding that a reasonable penalty be assessed against

CLC for the overheight violations in Counts

VII - X

of PCB 97-193.

Liability has been found against CLC in PCB 97-193 in regard to Count IV (failure

to

provide and maintain adequate financial assurance) and Count V (failure to timely file the

required application for significant modification). A reasonable penalty should be assessed

40

Electronic Filing - Received, Clerk's Office, May 4, 2009

---

against CLC for these violations. No harm to the environment occurred as a result of these

violations

and both were eventually corrected.

.42(h)(4):

The amount of monetmJ' penalty which will serve to deter fill'ther

violations by the respondent and to otherwise aid in enhancing valuntmy

compliance with this Act by the respondent and other persons simi/arly

subject

to the Act.

CLC believes the appropriate civil penalty in this matter

is no more than Twenty Five

Thousand Dollars

and 00/100 ($25,000.00) which should be entered against CLC alone. Robert

Pruim and Edward Pruim acted in their corporate capacities, not on behalf

of themselves

individually. (Edward Pruim, Dec.

4, 2008, pp. 73-74, 76, 85-86; Robert Pruim, pp. 60-61, 62-

63). Both Robert and Edward Pruim testified that they did not have any direct or personal

involvement

in

any of the allegations in the complaint. (Robert Pruim, Dec. 4, 2008, pp. 54-63;

Edward Pruim, pp. 93-100).

A fine

of no more than $25,000 to CLC would be a reasonable amount for the violations

contained in Counts III, IV,

V, VII-X, XIII, XIV, XVI, XIX (part) and XXI in PCB No. 97-193

for which liability has already been found by the Board. The State has failed to prove its case

against CLC

at hearing for the alleged daily operation violations contained in Counts I, II, VI,

XV, XVII, XIX (part) and XX. All counts against Robert and Edward Pruim in PCB 04-207

should be dismissed since the evidence falls woefully short

of establishing personal liability.

42(h)(S):

The number, proximity in time, and gravity of previously adjudicated

violations

of this Act by the Respondent.

There are no previously adjudicated violations against CLC or the Pruims. Contrary to

what the State represents, a grant

of partial summary judgment in 2006 against CLC where a

41

Electronic Filing - Received, Clerk's Office, May 4, 2009

---

final order has not been entered is not a previously adjudicated violation. An administrative

citation issued in 1989 against

CLC is not an adjudicated violation.

42(b)(6):

Whether the respondent voluntarily self-disclosed, in accordance 'with

subsection

(i)

a/this Section, the non-compliance to the Agency.

It

is curious that the State claims that CLC did not self-disclose any of the violations. In

fact, the State only learned of the issue of potential overheight through the significant

modification application filed by CLC in August 2006 wherein Andrews Environmental

Engineering reported that Parcel B

of the landfill may be overheight by 475,000 cubic yards.

(Christine Roque, Dec.

2, 2008, pp. 84-85). This is the primary evidence on which the State

shows to bring perhaps the most serious charges

in this case against CLC and the Pruims. Since

the time that these matters were originally alleged in 1997, more specific evidence has been

presented

to show that Andrews' statement regarding the overheight which was in a small,

nondescript paragraph within a permit application consisting of numerous volumes and may not

have been at all accurate. The Pruims and

Mr. Pelnarsh testified that there is still available

capacity on Parcel B. After learning of the potential for overheight, the Pruims ordered Mr.

Pelnarsh

to move more than 100,000 yards of waste from Parcel B to Parcel

A.

The Rapier

Survey showed only 66,589 cubic yards

of material above the permitted elevation capacity.

Despite conflicting evidence

of whether Parcel B of the landfill is or ever was overheight, it must

be admitted and CLC must be given credit that the issue

of overheight was self-disclosed by

CLC.

42(b)(7):

Whether the respondent has agreed to undertake a supplemental

environmental project

...

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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The State has not proposed a supplemental environmental project but CLC would

consider undertaking a feasible proposal.

IX.

ATTORNEYS'

FEES AND COSTS

The State has not requested the assessment of attorneys' fees and costs. Indeed, in a hotly

contested case like this where the Respondents have presented competent evidence

of both non-

liability and

no substantial penalty, a grant for attorneys' fees and costs would be inappropriate.

X.

CONCLUSION

At hearing on December 2-4, 2009, the State failed

to prove the violations against CLC

that are contained in PCB 97-193: Counts

I, II, VI, XV, XVII, XIX (part) and XX.

It

failed to

prove any personal involvement in any

of the violations against Robert and/or Edward Pruim in

PCB 04-207. Therefore, since liability has already been found against CLC for violations in PCB

97-193 (Counts III, IV,

V, VII-X, XIII, XIV, XVI, XIX (part) and XXI), the Board should assess

a penalty

of no more than $25,000.00 against CLC only.

Mark

A. LaRose

LaRose

&

Bosco, Ltd.

200 N. LaSalle Street, Suite 2810

Chicago

IL 6060

I

(312) 642-4414

Atty. No. 37346

Clarissa

Y. Cutler

Attorney at Law

155 North Michigan Avenue, Suite 375

Chicago

IL 6060

I

(312) 729-5067

AttyNo.44745

Respectfully submitted,

lsi

Clarissa

Y.

Cutler

One

of Respondents' Attorneys

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Electronic Filing - Received, Clerk's Office, May 4, 2009

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COUNTS

People v. CLC

(2nd Am. Complaint)

PCB No. 97-193

I

II

III

IV

V

VI

VII

EXHIBIT

A

TO

RESPONDENTS COMMUNITY LANDFILL CO., INC.,

ROBERT PRUIM AND EDWARD PRUIM'S POST-HEARING BRIEF

COUNTS

People v. Edward

&

ALLEGATION

DISPOSITION

Robert Pru;1II

PCB No. 04-207

I

Failure to adequately manage refuse and

• Liability and Penalty for CLC

litter

.Liability

and Penalty for Pruims

II

Failure to prevent or control leachate flow

.Liability and Penalty for CLC

• Liability and Penalty for Pruims

III

Failure to properly dispose of landscape

.Penalty only for CLC

.waste

• Liability and Penalty for Pruims

IV

Failure to provide and maintain adequate

.Penalty only for CLC

financial assurance

• Liability and Penalty for Pruims

V

Failure

to timely file the required

.Penalty only for CLC

application for significant modification

• Liability and Penalty for Pruims

VI

Water pollution

.Liability and Penalty for CLC

.Liability and Penalty for Pruims

VII

Depositing waste

in

unpermitted portion of

.Penalty only for CLC

landfill (parcel

B)

• Liability and Penalty for Pruims

---

COUNTS

COUNTS

People v. CLC

People v. Edward

&

ALLEGATION

DISPOSITION

(2nd

Am.

Complaint)

Robert

Prllim

PCB No. 97-193

PCB No. 04-207

VIII

VIII

Conducting waste disposal operation

.Penalty only for CLC

without a permit

• Liability and Penalty

for Pruims

IX

IX

Open Dumping

.Penalty only for CLC

.Liability and Penalty for Pruims

X

X

Violation of Special Condition 3 -

.Penalty only for CLC

overheight

• Liability and Penalty for Pruims

XI

Improper handling of asbestos

.Dismissed against CLC on October 3,

2002

XII

XI

Conducting waste disposal operation

.Dismissed against CLC on July 26,

without a permit (parcel

A)

2001 (on reconsideration)

.Dismissed against the Pruims

on

November 4, 2004

XIII

XII

Improper disposal of waste tires

.Penalty only for CLC

• Liability and Penalty for Pruims

XlV

XIIl

Violating Standard Operating Permit 1989-

.Penalty only for CLC

005-SP Condition #13 (temporary fencing)

.Dismissed against the Pruims

on

April 20, 2006

XV

XlV

Violating Standard Operating Permit 1996-

• Liability

and Penalty for CLC

240-SP Condition

#1 (operation of gas

control)

.Dismissed against the Pruims

on

April 20, 2006

2

---

COUNTS

COUNTS

People v. CLC

People v. Edward &

ALLEGATION

DISPOSITION

(2nd Am. Complaint)

Robert Pruim

PCB No. 97-193

PCB No. 04-207

XVI

XV

Violation

of Standard Operating Permit

oPenaity only for CLC

1996-240-SP Condition #9 (erosion,

ponding

&

cracks)

o Dismissed against the Pruirns on

April 20, 2006

XVII

XVI

Violation of Standard Operating Permit

oLiability and Penalty for

CLC

1996-240-SP Condition #11 (leachate

disposal)

o Dismissed against the Pruirns on

April 20, 2006

XVIII

Violation

of permit condition - final cover

oDismissed against

CLC on October 3,

2002

XIX

XVII

Failure to provide and maintain financial

(a) Failure to increase financial

assurance pursuant

to October 24, 1996

assurance from $1,342,500 to

permit (Violation

of Permit 1996-240-SP

$1,431,600 by January 22,1997

Condition #13):

oPenaity only for CLC

(a) Failure to increase financial assurance

from $1,342,500 to $1,431,600 by January

o Liability and Penalty for Pruirns

22,

1997

(b) Failure to increase financial

(b) Failure to increase financial assurance

assurance to $1,439,720 before

to $l,439,720 before operation of gas

operation of gas system

system

oLiability and

Penalty for

CLC

oLiability and Penalty for Pruirns

3

---

COUNTS

COUNTS

People v. CLC

People v. Edward &

ALLEGATION

DISPOSITION

(2nd Am. Complaint)

Robert PrIl;m

PCB No. 97-193

PCB No. 04-207

XX

xvrn

Violation of Standard Operating Permit

-Liability and Penalty for CLC

1989-005-SP Condition #17 (caused

or

-State seeks a voluntary dismissal

allowed placement ofleachate

in

areas not

against CLC (See State's Brief, p. 42)

certified

or approved by the IEPA)

-Dismissed against the Pruims

on

April 20, 2006

XXI

XIX

Failure to provide revised cost estimate by

-Penalty only for CLC

December 26, 1994

-Liability and Penalty for Pruims

XXll

Failure to provide revised cost estimate by

-Dismissed against CLC on October 3,

7/26/98

2002

---------

------

-- -----

4

Electronic Filing - Received, Clerk's Office, May 4, 2009

---

CERTIFICATE OF SERVICE

I, Clarissa Y. Cutler, an attorney, hereby certify that I caused to be served a copy of the

foregoing RESPONDENTS COMMUNITY LANDFILL COMPANY, INC.,

ROBERT

PRUIM AND EDWARD PRUIM'S POST-HEARING BRIEF, by'electronic filing, emailing,

and

by placing same in first-class postage prepaid envelopes and depositing same in the U.S.

Mail Box located

at 200 North LaSalle Street, Chicago, Illinois, this

4th

day of MAY, 2009,

addressed as follows:

By U.S.

Mail and email

Christopher Grant

Jennifer VanWie

Environmental Bureau

Assistant Attorney General

69 W. Washington, 18th Floor

Chicago, Illinois 60602

cgrantialatg.state.il.us

ivanwieialatg.state.il.us

Mark

A. LaRose

LaRose

&

Bosco, Ltd.

200 N. LaSalle Street, Suite 2810

Chicago

IL 60601

(312) 642-4414

Atty. No. 37346

Clarissa

Y. Cutler

Attorney

at Law

155 NOrtll Michigan Avenue, Suite 375

Chicago IL 6060 I

(312) 729-5067

AttyNo.44745

By U.S.

Mail and email

Bradley Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

hallorab@ipcb.state.il.us

/s/ Clarissa

Y. Cutler

One

of Respondents' Attorneys

THIS FILING IS SUBMITTED ON RECYCLED PAPER.