BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF

THE STATE OF ILLINOIS, )

Complainant,

vs.

COMMUNITY LANDFILL

COMPANY,

INC.,

Respondent.

)

)

)

)

)

)

)

)

)

~~~==~~~~~~~)

PEOPLE OF THE STATE OF ILLINOIS, )

Complainant,

vs.

EDWARD PRUIM and ROBERT PRUIM,

Respondents.

)

)

)

)

)

)

)

)

PCB No. 97-193

(Enforcement - Land)

(consolidated)

PCB No. 04-207

(Enforcement - Land)

NOTICE OF FILING

TO: Christopher Grant

Jennifer Van Wie

Enviromnental Bureau

Assistant Attorney General

69 W. Washington, 18th Floor

Chicago, JIlinois

60602

c grantlal,atg. state. i I. us

jvanwielal,atg.state .il.us

Bradley Halloran

Hearing Officer

JIlinois Pollution Control Board

100 West Randolph, Suite 11-500

Chicago, JIlinois 60601

hallorablal,ipcb.state.i

I. us

PLEASE TAKE NOTICE that on DECEMBER 9, 2009, the undersigned caused to be

electronically filed with Mr. John Therriault,

of the JIlinois Pollution Control Board, 100 West

Randolph

Street, Suite 11-500, Chicago, Illinois 60601, the RESPONDENTS COMMUNITY

LANDFILL COMPANY, INC., ROBERT PRUlM AND EDWARD PRUIM'S MOTION

FOR STAY PENDING APPEAL, a copy of which is attached and hereby served upon you.

lsi

Mark A. LaRose

One of Respondents' Attorneys

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

Electronic Filing - Received, Clerk's Office, December 9, 2009

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Mark A. LaRose

LaRose

&

Bosco, Ltd.

200 N. LaSalle Street, Suite 2810

Chicago lL

6060 I

(312) 642-4414

Atty. No. 37346

Clarissa

Y. Cutler

Attorney at Law

155 North Michigan Avenue, Suite 375

Chicago lL

6060 I

(312) 729-5067

Atty No. 44745

Electronic Filing - Received, Clerk's Office, December 9, 2009

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS, )

Complainant,

vs.

COMMUNITY LANDFILL COMPANY,

INC.,

Respondent.

)

)

)

)

)

)

)

)

)

~~~==~~~~~~=-)

PEOPLE OF THE STATE OF ILLINOIS, )

Complainant,

vs.

EDWARD

PRUIM and ROBERT PRUlM,

Respondents.

)

)

)

)

)

)

)

)

PCB No. 97-193

(Enforcement - Land)

(consolidated)

PCB No. 04-207

(Enforcement - Land)

RESPONDENTS COMMUNITY LANDFILL CO., INC.,

EDWARD PRUIM AND ROBERT PRUIM'S

MOTION FOR

STAY

PENDING APPEAL

Respondents, COMMUNITY LANDFILL CO., INC. (CLC), EDWARD PRUIM and

ROBERT PRUIM, by and through their attorneys Mark

A.

LaRose of LaRose

&

Bosco, Ltd. and

Clarissa

Y. Cutler, pursuant to Illinois Supreme Court Rule 335 and § 1D1.906(c) of the Illinois

Pollution Control Board's General Rules, hereby moves the Board for a stay pending appeal for

the following reasons:

1.

Section 101.906(c) of the Board's General Rules provides that stays pending

appeal are governed by Illinois

Supreme Court Rule 335. Rule 335(g) states that a stay pending

appeal shall ordinarily be sought in the first instance from the administrative agency.

Electronic Filing - Received, Clerk's Office, December 9, 2009

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2.

The Illinois Supreme Court has addressed factors that should be considered in

ruling on a motion for stay pending appeal.

Stacke v. Bates,

138 Ill.2d 295, 304-05, 562 N.E.2d

192, 196 (1990).

One consideration is "whether a stay is necessary to secure the fruits of the

appeal

in the event that the movant is successfuL"

Stacke,

138 Ill.2d at 305,562 N.E.2d at 196.

Other equitable factors should be balanced, and include whether the

status quo

should be

preserved, the respective rights

of the litigants, and whether hardship on other parties would be

imposed.

Stacke,

138 Ill.2d at 305-06, 309, 562 N.E.2d at 196, 198. Another consideration is

whether there is a "substantial case on the

merits" (not likelihood of success on the merits), but

this

"should not be the sole factor."

Stacke,

138 Ill.2d at 309, 562 N.E.2d at 198. Here, all factors

favor a stay.

3.

In its August

20,2009 Opinion and Order, the Board ordered the following:

1)

The Board finds that respondents, Community Landfill Company, Inc. and

Edward and Robert

Pruim, have committed the violations as set forth in

this opinion.

2)

Commlmity Landfill Company, Inc. and Edward and Robert

Pruim must

pay a civil penalty

of two hundred and fifty thousand dollars ($250,000)

against respondent, jointly and severally, no later than September 21,

2009, which is the first business day following the 30th day after the date

of this order. Community Landfill Company, Inc. and Edward and Robert

Pruim must pay the civil penalty by certified check, money order, or

electronic fimds transfer, payable to the Illinois Environmental Protection

Trust Fund. The case name, case number, and Community Landfill

Company, Inc. and Edward and Robert

Pruim, Social Security Number or

Federal Employer Identification Number must appear on the face

of the

certified check or money order.

****

4)

Penalties unpaid within the time prescribed will accrue interest under

Section 42(g)

of the Environmental Protection Act (415 ILCS

5/42(g)

(2006)) at the rate set forth in Section 1 003(a) of the Illinois Income Tax

Act (35 ILCS

511

003(a) (2006)).

2

Electronic Filing - Received, Clerk's Office, December 9, 2009

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5)

Community Landfill Company, Inc. and Edward and Robert Pruim must

cease and desist from violations

of the Act and the Board's regulations.

(Board's August

20, 2009 Order at p. 58)

4.

On September 28, 2009, CLC, Robert Pruim and Edward Pruim moved the Board

to reconsider its August

20, 2009 Order, and on November 5, 2009, the Board issued an order

denying CLC, Robert

Pruim and Edward Pruim's Motion to Reconsider.

5.

Pursuant to the Board's November 5, 2009 Order, the 30-day time frame for

payment

of the civil penalty was December 5, 2009.

6.

Because the December 5, 2009 penalty payment deadline preceded and conflicted

with the December 14,

2009 deadline to file a motion to stay in this court, and to file an appeal in

the Third District Appellate Court, CLC and the

Pruims filed a motion to extend the payment

penalty deadline until after December

14,2009.

7.

On December 3, 2009, the Board granted CLC and the Pruim's motion to extend

the payment penalty deadline to

"January 5, 2010, unless the payment is stayed by either the

Board or the Appellate

Court."

8.

Here, a stay is "necessary to secure the fruits of the appeal in the event that the

movant

is successful" and to preserve the status guo.

9.

Ordering CLC, a closely-held corporation, and the Pruims to pay $250,000 in

penalties would render the appeal meaningless.

10.

CLC and the Pruims' main arguments on appeal will be that the Board's order of

any penalty, let alone a $250,000.00 penalty was erroneous, and that the Board erroneously

imposed personal liability against Robert Pruim and Edward Pruim, the principals of CLC, in

regard to several counts

of the State's complaint against the individual respondents.

3

Electronic Filing - Received, Clerk's Office, December 9, 2009

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II.

If CLC and the Pruims pay now, there is no easy process for the return of the

funds

if CLC and the Pruims prevail on appeal, and the State, currently in dire need of liquid

funds, could spend the monies. While a court could order the State

to return the funds, this could

require a legislative appropriation or other complicated process. A stay should be entered

in

order to maintain the status quo. If the penalty is paid, then under the Act, those monies go to a

special fund, the Environmental

Protection Trust Fund. 415 ILCS 5/42(a); 30 ILCS 1051125.1.

The disbursement of this fund is controlled by a commission of four persons, including the

Attorney General, the Director

of Natural Resources, the PCB Chairman, and the Director of the

Environmental

Protection Agency, 30 ILCS 105/125.1. These four persons have the right to

approve grants and administer the funds on behalf of the State.

Jd.

If this fund is inactive for 18

months or if discontinued by legislative action, the monies are transferred to the General

Revenue Fund.

30 ILCS 105/5.102. The Illinois Legislature also may order the transfer of

monies from the Environmental Protection Trust Fund into the General Revenue Fund. For

example, starting July I,

2006, the Legislature ordered that $2,228,031 be transferred to the

General Revenue Fund.

30 ILCS 105/8.44. Put a different way, there is no simple way to recover

money from the State.

12.

There is no real urgency to this matter. The initial case of PCB No. 97-193 was

filed

in May of 1997 and consolidated with PCB No. 04-207 in February of2005. Allowing this

matter

to proceed through its final stage in the Illinois Appellate Court will not present any

further harm or threat to the public or the environment. The fact that the matter has been

lingering in the

Pollution Control Board for more than 12 years, belies any urgency to the

payment

of the fine.

13.

The

status quo

would be preserved by a stay.

4

Electronic Filing - Received, Clerk's Office, December 9, 2009

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14.

The respective rights of the litigants would not be affected and there would not be

any hardship imposed on any other parties. The stay would merely postpone the effect

of the

Board's order pending appeal.

If the state is successful on appeal, the Board's order will be in full

force and effect and therefore, will have

no adverse effect on the state. To the contrary, there

would

be an extensive adverse effect on CLC and the Pruims if the penalty requirement was

imposed pending appeal.

15.

An additional factor is that there is a substantial case on the merits.

Slacke, 138

Ill.2d at 309, 562 N.E.2d at 198. This is not the same as likelihood of success on the merits, and

is only one consideration, not the

"sole factor."

Id.

This Board is familiar with CLC's position

through its post-hearing briefs and briefs submitted in support

of its Motion to Reconsider,

adopted and incorporated herein by reference. While this Board did not agree with CLC's and the

Pruims' position, it cannot be said that there is not a substantial case on the merits.

16.

For all the reasons discuss herein, a stay is necessary in this case. The United

States Supreme Court recently explained why stays pending appeal are necessary.

It

takes time to decide a case on appeal. Sometimes a little; sometimes a lot. "No

court can make time stand still" while it considers an appeal,

Scripps-Howard

Radio,

Inc. v. FCC,

316 U.S. 4, 9 (1942), and if a court takes the time it needs, the

court's decision may in some cases come too late for the party seeking review.

That is why

it "has always been held, ... that as part of its traditional equipment

for the administration

of justice, a federal court can stay the enforcement of a

judgment pending the outcome

of an appeal."

Id.,

at 9-10 (footnote omitted). A

stay does not make time stand still, but does hold a ruling

in abeyance to allow an

appellate court the time necessary to review it.

Niken

v. Holder,

129 S.C!. 1749, 1754, 173 L.Ed.2d 550 (2009) (holding a court's inherent

authority to stay pending appeal and the traditional factors apply, not the demanding standards

of

8 U.S.C. § 1252(f)(2)).

5

Electronic Filing - Received, Clerk's Office, December 9, 2009

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CONCLUSION

For the foregoing reasons, Community Landfill Co., Robert Pruim and Edward Pruim

request that the Board stay its order pending appeal and grant such other relief as the Board

deems proper.

Mark

A. LaRose

LaRose

&

Bosco, Ltd.

200 North LaSalle Street, Suite 2810

Chicago lL 60601

(312) 642-4414

Clarissa Y. Cutler

Attorney at Law

155 North Michigan Avenue

Suite 375

Chicago IL

60601

(312) 729-5067

Respectfully submitted,

/s/ Mark

A.

LaRose

One of the Attorneys for

COMMUNITY LANDFILL

CO., INC.

6

Electronic Filing - Received, Clerk's Office, December 9, 2009

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CERTIFICATE OF SERVICE

1, Mark

A.

LaRose, an attorney, hereby certify that 1 caused to be served a copy of the

foregoing

RESPONDENTS COMMUNITY LANDFILL COMPANY, INC., ROBERT

PRUIM AND EDWARD PRUIM'S MOTION FOR STAY PENDING APPEAL, by

electronic filing, e-mailing, 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

9th day of DECEMBER, 2009, addressed as follows:

By

U.S. Mail and email

Christopher Grant

Jennifer Van Wie

Environmental Bureau

Assistant Attorney General

69

W. Washington, 18th Floor

Chicago, Illinois

60602

cgrantlillatg.state.

i1. us

jvanwielillatg. state. i1. us

Mark

A.

LaRose

LaRose

&

Bosco, Ltd.

200 N. LaSalle Street, Suite 2810

Chicago lL 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

By

U.S. Mail and email

Bradley Halloran

Hearing

Officer

Illinois Pollution Control Board

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

hallorablillipcb.state.

i

I.

us

lsi

Mark A. LaRose

One of Respondents' Attorneys

THIS FILING IS SUBMITTED ON RECYCLED PAPER.