THIS FILING IS SUBMITTED ON RECYCLED PAPER.
RECEIVED
INTRODUCTION
CERTIFICATE OF SERVICE

CLER1~S OFFICE

BEFORE THE ILLINOIS POLLUTION

CONTROL

BOARD

f\UG

12003

PEOPLE OF

THE

STATE OF ILLINOIS,

)

STATE OF ILLINOIS

Complainant,

)

PollutIon

Control Board

)

vs.

)

PCBNo.03-191

)

(Enforcement)

COMMUNITY LANDFILL COMPANY,

)

INC., an Illinois corporation, and

)

the CITY OF MORRIS, an Illinois

)

municipal corporation,

)

Respondents.

)

NOTICE OF FILING

TO:

Ms. Dorothy Gumi, Clerk

Mr. Christopher Grant

Illinois Pollution Control Board

Assistant Attorney General

James R. Thompson Center

Environmental Bureau

100 W. Randolph Street, 11-500

188 W. Randolph, 20th Floor

Chicago, IL 60601

Mr. Brad Halloran

Hearing Officer

Illinois Pollution Control Board

100 W. Randolph Street, Suite 11-500

Chicago, IL 60601

PLEASE TAKE

NOTICE

that on August 1, 2003, the undersigned filed with the clerk ofthe

illinois Pollution Control Board an original and nine copies of RESPONDENT COMMUNITY

LANDFILL COMPANY INC.’S RESPONSE TO COMPLAiNANT’S MOTION TO STRTXE

AFFIRMATIVE DEFENSES, a copy ofwhich is attached and hereby served upon you.

eQL~~~C’

One ofthe Attorneys for Commu ty Landfill Co.

Mark A. LaRose

Clarissa C. Grayson

LaRose & Bosco, Ltd.

AttorneyNo. 37346

734 N. Wells Street

Chicago,IL 60610

(312) 642-4414

Fax (312) 642-0434

THIS FILING IS SUBMITTED ON RECYCLED PAPER.

RECEIVED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARI~uG

1 2003

STATE

OF ILUNOIS

PEOPLE OF THE STATE OF ILLINOIS,

)

Pollution Control

Board

)

Complainant,

)

vs.

)

PCBNo.03-191

)

(Enforcement)

COMMUNTTY LANDFILL COMPANY,

)

NC., an Illinois corporation, and

)

the CITY OF MORRIS, an Illinois

)

municipal corporation,

)

Respondents.

)

RESPONDENT

COMMUNITY LANDFILL COMPANY INC.’S RESPONSE

COMPLAINANT’S MOTION TO

STRIKE

AFFIRMATIVE DEFENSES

Respondent, Community Landfill Company, Inc.,

(“CLC”

or“Respondent”) by and through

its attorneys LaRose & Bosco, Ltd., responds to the People ofthe State ofIllinois’ (“Complainant”)

Motion to Strike Affirmative Defenses, and moves the Board to deny Complainant’s motion, and

in support thereof, states as follows:

INTRODUCTION

On April 16, 2003, Complainant filed a complaint alleging that CLC and the City ofMorris

(“Respondents”) operated a Municipal Solid Waste Landfill without having first provided

appropriate financial assurance as requiredby the Illinois Environmental Protection Act (“the Act”)

and the Pollution Control Board (“Board”). On June 16, 2003, RespondentCLC filedits answerand

affirmative defenses.’ On July 16, 2003, Complainant filed its motion to strike CLC’s first and

On June 13, 2003, Respondent City ofMorris filed its answer and affirmative

defenses which did not contain any affirmative defenses.

argument’s sake onlythat the elements ofcollateral estoppelhave beenmet, the Complainant should

not be allowed to use offensive collateral estoppel in this case. The cases cited by the People in

support oftheir motion, Community Landfill Company et.al v. Illinois Environmental Protection

Agency, PCB 01-170 (2001) and the subsequent decision by the Third District Appellate Court,

CommunityLandflhl Company et.al v. Pollution Control Board, 331 fll.App.3d 1056 (3dDist. 2002);

appeal denied, 202 lll.2d 600 (2002) were appeals of the Agency’s denial of a permit, a civil

proceeding. They were not part of an enforcement action brought by the People ofthe State of

Illinois, a quasi-criminal proceeding.

Permitting is specifically governed by Section 39 ofthe Act, and enforcement is governed

by Section 31 ofthe Act. The burdens ofproofunder eachofthose procedures are starkly different.

un an enforcementcase, the Agencyorthe complainant hasthe burden ofprovin~that the r-espond-ent

has violated or threatens to violate a provision ofthe Act, the regulations or a permit. 415 ILCS

5/31(e)

(2001). In a permit appeal, the petitioner has the burden of proving that denial was

inappropriate and that if the permit had been granted there would be no violation ofthe Act or the

regulations. The Board recognizedthe illegality ofthis burden shifting in ESG Watts, Inc. v. IEPA

(October 29, 1992) PCB

92-54

at 7. Prohibition against the Agency using permits to enforce has

long been recognized bythe Board and the Courts. j4.; EPA v. PCB, 252 Ill.App.3d 828,624 N.E.2d

402,403 (3dDist. 1993). Most recently, the Board recognizedand raised this prohibition

sua

$ponte

in CLC, et.al v. IEPA (April

2001), PCB 01-48, 01-49, (consolidated) at 24-25.

In PCB-170, a civil matter, CLC appealed the Agency’s denial ofa supplemental permit for

the Morris Community Landfill, based on the same Frontierbonds at issue in the present matter.

Community Landfill Company et.al v. Illinois Environmental Protection Agency, PCB 0 1-170

248,

252

(1988) (holding that findings in a civil fraud action may not form the basis of collateral

estoppel in a subsequent disciplinary proceeding).

Furthermore, the court has cautioned against the use ofoffensive collateral estoppel. ~

Milligan v. Bd. ofFire and Police Comm’rs ofthe Vill. ofGlenview, et. al., 158 Ill.2d

85, 95,

630

N.E.2d 830,

835

(1994). Offensive collateral estoppel occurs when a plaintiff seeks to preclude a

defendant from litigating an issue the defendant has previously litigated unsuccessfully irr another

action. VanMilligan, 158 Ill.2d at

95,

630 N.E.2d at 835. The Illinois Supreme Court has stated that

such use ofcollateral estoppel must be done cautiously such that the defendant may fully and fairly

litigate his case, even in cases where the threshold requirements forestoppei are~othwiseiatisfied.

Id, 158 Ill.2d at

95,

630 N.E.2d at 835.

Inthe present case, the Complainant seeks to useoffensive collateral estoppel to prevent the

Respondent from making a defense that was raised in a prior civil proceeding. This argument,

however, ignores both the court’s cautioned useofoffensive collateral estoppel and the fact that the

Complainant’s standard ofproofforthis disciplinaryprocee igisahighertnethan inthe-priorth’vii

adjudication. Therefore, Respondent should not be precluded froniasserting their first and second

affirmative defenses in the present enforcement matter since the issues before the Board were

previously adjudicated in a permit appeal, a civil proceeding with a lower burdern of proof, not in

an enforcement proceeding, a quasi-criminal proceeding with a higher burden ofproof.

WHEREFORE, Respondent Community Landfill Company respectfully requests that the

Board deny the Complainant’s Motion to Strike Respondent’s First and Second Affirmative

Defenses.

CERTIFICATE OF SERVICE

I, Clarissa C. Grayson, an attorney hereby certify that I served RESPONDENT

COMMUNITY LANDFILL COMPANY INC.’S RESPONSE TO COMPLAINANT’S MOTION

TOSTRiKE AFFIRMATIVE DEFENSES by placing copies ofsame in the United States Mail, first-

class postage prepaid this lS~day ofAugust 2003, addressed as follows:

(1~~

C~r-

One ofthe Attorneys for Community Landfill Co.