BEFORE THE ILLINOIS POLLUTION CONTROL BOA~~.
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERR~S
0FFICE
by LISA MADIGAN, Attorney
)
DEc
1
5
2
General of the State of Illinois,
STATE OFILLINOIS
Complainant,
)
0IIUtIo~Controi Board
v.
)
PCB No.
02-77
MILLENIUM RECYCLING & SOLID WASTE
CONSULTANTS,
INC.,
an Illinois
corporation,
SHERRI CLEMENTI,
individually and as President of
MILLENIUM RECYCLING & SOLID WASTE
CONSULTANTS,
INC., and MICHAEL
LORENCE individually,
Respondents.
NOTICE
OF FILING
TO:
See attached Service List
PLEASE TAKE NOTICE that on December 15,
2003,
the
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
filed before the
Illinois Pollution Control Board,
its
MOTION TO DEEM FACTS
ADMITTED A~DFOR
SUNMARY JUDGMENT,
a true and correct copy of
which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
By LISA MADIGAN, Attorney General
of the State of Illinois
BY:
___________
MITCHELL L.
CO
N
Assistant Attorney General
Environmental Bureau
188 W.
Randolph,
Suite 2001
Chicago, Illinois 60601
(312)
814-5282
DATE:
December 15,
2003
SERVICE LIST
Millenium Recycling & Solid Waste Consultants,
Inc.
C/O Sherri Lynn Clernenti Clementi
President and Registered Agent
1133 Hillcrest
Carol Stream,
IL 60188
Sherri
Lynn
Clementi
1133 Hillcrest
Carol Stream,
IL 60188
Michael Lorence
1133 Hillcrest
Carol Stream,
IL 60188
Bradley
P.
Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center,
Suite 11-500
Chicago, Illinois 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~ECE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney
)
uEC
15
2003
General of the State of Illinois,
STATEOFILLINOIS
Pollution
Control Board
Complainant,
v.
)
PCB No.
02-77
IMILLENIUM RECYCLING & SOLID WASTE
CONSULTANTS,
INC.,
an Illinois
corporation,
SHERRI CLEMENTI,
individually and as President of
NILLENIUM RECYCLING & SOLID WASTE
CONSULTANTS,
INC.,
and MICHAEL
LORENCE individually,
Respondents.
MOTION TO DEEM FACTS ADMITTED AND FOR SUNMARY JUDGMENT
Now comes the Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General of the State of Illinois, and
pursuant to Sections 103.204 and 101.516 of the Board’s
Procedural Rules,
35
Ill. Adm.
Code 103.204 and 101.516,
and the
October
2,
2003,
Order of the Board, hereby moves for the entry
of an order deeming all material facts in Complainant’s Amended
Complaint as admitted against Respondents,
SHERRI CLEMENTI
(“Clementi”),
individually and as President of MILLENIUM
RECYCLING & SOLID WASTE CONSULTANTS,
INC.,
and MICHAEL LORENCE
(“Lorence”)
,
individually as to Counts
I,
II,
III,
and IV of The
Amended Complaint.
Further, Complainant moves this Board for
Summary Judgment against all Respondents.
In support thereof,
Complainant states as follows:
1.
On April
10,
2003,
the Complainant filed its Amended
Complaint against Respondents MILLENIUM RECYCLING & SOLID WASTE
CONSULTANTS,
INC.
(“Millenium”),
an Illinois corporation,
CLementi, and Lorence.
Complainant alleged violations of
Sections 21(a),
21(d) (1),
21(e),
and 21(p)
(1)
of the Act,
415
ILICS
5/21(a),
(d) (1),
(e)
,
and
(p)
(1)
(2002)
.
Specifically,
the
Amended Complaint alleges open dumping, conducting a waste
disposal operation without a permit, disposal of waste at an
unpermitted facility,
and causing or allowing littering.
2.
By Order of the Board on October
2,
2003,
a default
order was entered against Millenium for its repeated failure to
comply with Board and hearing officer orders to appear and
proceed with this case.
The Board has already found that
Nillenium violated Sections 21(a)
,
21(d) (1)
,
21(e)
,
and 21(p) (1)
of the Act,
415 ILCS 5/21(a),
(d) (1),
(e)
,
and
(p) (1)
(2002),
as
alleged in the Amended Complaint.
3.
The Board’s Order of October
2,
2003,
required
Complainant
to provide proof of service of the April
10,
2003
Amended Complaint.
Complainant complied with the Board’s Order.
4.
The Board’s Order of October
2,
2003,
required
Respondent Lorence to answer The Amended Complaint within 60 days
from the date of the Board’s Order,
that being December
1,
2003.
5.
As of the date of the filing of this Motion,
Respondent,
Lorence, has not filed an answer, nor otherwise
plead,
to the Amended Complaint.
-2-
6.
The Amended Complaint was served upon Clementi by
certified mail on April
12, 2003.
7.
Though Clementi has appeared,
as of the date of the
filing of this Motion,
she has not filed an answer, nor otherwise
plead,
to the Amended Complaint.
8.
Section 103.204(d)
and
(e)
of the Board Procedural
Rules,
35
Ill. Adm.
Code 103.204, provides as follows:
(d)
Except as provided in subsection
(e)
of
this Section, the respondent may file an
answer within 60 days after receipt of
the complaint
if respondent wants to
deny any allegations in the complaint.
All material allegations of the
complaint will be taken as admitted if
no answer is filed or if not
specifically denied by the answer,
unless respondent asserts a lack of
knowledge sufficient to form a belief.
Any facts constituting an affirmative
defense must be plainly set forth before
hearing in the answer or in a
supplemental answer,
unless the
affirmative defense could not have been
known before hearing.
(e)
If the Respondent timely files a motion
under Section 103.212(b)
or 35
Ill. Adm.
Code 101.506, the 60-day period to file
an answer described in subsection
(d)
of
this Section will be stayed.
The stay
will begin when the motion is filed and
end when the Board disposes of the
motion.
9.
By failing to answer the Amended Complaint by
December
1,
2003 and by failing to file a motion staying the 60-
day period in which to file an answer as required by Sections
103.204(d)
and
(e)
of the Board Procedural Rules,
35
Ill. Adm.
-3-
Code 103.204(d)
and
(e),
Respondent,
Lorence, has admitted the
material allegations asserted in the Amended Complaint.
10.
By failing to answer the Amended Complaint by
June 11,
2003 and by failing to file a motion to stay the 60-day
period in which to file an answer as required by Sections
103.204(d)
and
(e)
of the Board Procedural Rules,
35
Ill.
Adm.
Code 103.204(d)
and
(e),
Respondent,
Clementi,
has admitted the
material allegations asserted in the Amended Complaint.
11.
Complainant therefore requests that the Board find,
pursuant to Section 103.204(d)
and
(e)
of 35
Ill. Adm.
Code
103.204(d)
and
(e),
that Respondents,
Lorence and Clementi,
have
admitted all material allegations asserted in the Amended
Complaint.
12.
Complainant’s Amended Complaint sufficiently alleges
the following violations of the Act and Board Regulations against
the Respondents,
Lorence and Clementi:
Count
I:
Open dumping
Violation of Section 21(a)
of the Act,
415 ILCS 5/21(a)
(2002)
Count
II: Conducting a Waste Disposal Operation Without
a Permit
Violation of Section 21(d) (1)
of the Act,
415 ILCS
5/21(d) (1) (2002)
Count
III: Disposal,
Treatment,
Storage or Abandonment
Of Waste
Violation of Section 21(e)
of the Act, 415 ILCS 5/21(e)
(2002)
;
-4-
Count
IV: Causing or Allowing Littering
Violation of Section 21(p) (1)
of the Act,
415 ILCS
5/21(p) (1)
(2002)
13.
Section 101.516(b)
of the Board Procedural Rules,
35
Ill.
Adrn.
Code 101.516(b), provides as follows:
b)
If the record,
including pleadings,
depositions and admissions on file,
together with any affidavits,
shows that
there
is no genuine issue of material
fact,
and that the moving party is
entitled to judgement as
a matter of
law,
the Board will enter summary
j
udgement.
14.
If the Board finds that the Respondents,
Lorence and
Clementi,
have admitted all material allegations asserted in
Complainant’s Amended Complaint,
then the record shows that there
is no genuine issue of material fact remaining for review.
Therefore,
pursuant to Section 101.516(b)
of the Board Procedural
Rules,
35
Ill. Adm. Code 101.516(b), Complainant is entitled to
summary judgment in its favor as a matter of law.
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board issue an order in favor of
Complainant and against Respondents,
SHERRI CLEMENTI,
individually and as President of MILLENIUM RECYCLING & SOLID
WASTE CONSULTANTS,
INC.,
and MICHAEL LORENCE, individually,
as
follows:
1.
Ordering all material allegations asserted in the
Amended Complaint admitted against the Respondents Lorence and
Clementi;
-5-
2.
Finding that the Respondents, Lorence and Clementi
-violated Sections 21(a)
,
(d) (1),
(e)
,
and
(p) (1)
of the Act,
415
ILCS 5/21(a),
(d) (1),
(e)
,
and
(p) (1)
(2002);
3.
Additionally Complainant requests that the Board grant
summary judgment,
in favor of the Complainant and against all
Respondents,
Millenium,
Clementi,
and Lorence on Counts
I through
IV of the Amended Complaint;
SUGGESTED PENALTY
1.
The Board’s Order of October
2,
2003,
required
Complainant to make a suggestion concerning the appropriate civil
penalty in this case as to all Respondents,
Millenium,
Clementi,
and Lorence.
2.
Section 42(h)
of the Act,
415 ILCS 5/42(h)
(2002),
provides as follows:
h)
In determining the appropriate civil
penalty to be imposed under subdivisions
(a)
,
(b) (1)
,
(b) (2)
,
(b) (3)
,
or
(b) (5)
of this Section, the Board is authorized
to consider any matters of record in
mitigation or aggravation of penalty,
including but not limited to the
following factors:
(1)
the duration and gravity of the
violation;
(2)
the presence or absence of due
diligence on the part of the
violator in attempting to comply
with requirements of this Act and
regulations thereunder or to secure
relief therefrom as provided by
this Act;
-6-
(3)
any economic benefits accrued by
the violator because of delay in
compliance with requirements;
(4)
the amount of monetary penalty
which will serve to deter further
violations by the violator and to
otherwise aid in enhancing
voluntary compliance with this Act
by the violator and other persons
similarly subject to the Act;
(5)
the number, proximity in time,
and
gravity of previously adjudicated
violations
of this Act by the
violator.
3.
In terms of duration and gravity, the Respondents’
site
was in violation of the Act for over a year,
from at least April
20,
2000,
through May,
2001.
See Amended Complaint with
exhibits.
4.
Respondents exhibited no diligence whatsoever; they
left the site in the offensive condition for over a year,
and all
Respondents failed to answer the Amended Complaint,
or otherwise
comply withe the Act.
5.
Respondents avoided the cost of cleaning the site for
over one year and avoided the costs of getting the proper permits
from the Illinois EPA.
6.
$50,000.00
(Fifty Thousand Dollars)
is the amount of
civil penalty authorized by the Act for one violation.
Respondents committed four violations over a period of one year.
Complainant suggests that a $50,000.00 penalty will deter further
violations of the Act by these Respondents and others similarly
-7-
subject to the Act.
7.
Complainant
is unaware of any previously adjudicated
violations against any of the Respondents.
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board issue an order in favor of
Complainant and against Respondents MILLENIUM RECYCLING & SOLID
WASTE CONSULTANTS,
INC.,
an Illinois corporation,
SHERRI
CLEMENTI,
individually and as President of MILLENIUM RECYCLING &
SOLID WASTE CONSULTANTS,
INC.,
and MICHAEL LORENCE,
individually,
as follows:
1.
Assessing against the Respondents,
Millenium,
Clementi,
and Lorence a civil penalty of Fifty Thousand Dollars
($50,000.00)
for the violation of Sections 21(a),
(d) (1),
(e),
and
(p)
(1)
of the Act,
415 ILCS 5/21 (a)
,
(d) (1)
,
(e)
,
and
(p) (1)
(2002)
2.
Ordering the Respondent to cease and desist from
further violations of Sections 21 (a)
,
(d)
(1)
,
(e)
,
and
(p) (1)
of
the Act, 415 ILCS 5/21 (a)
,
(d)
(1)
,
(e)
,
and
(p) (1)
(2002)
—8-
3.
Granting such additional relief as the Board deems
appropriate and just
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW J.
DIJ1~N, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU,
Chief
MI~CHELLL. C
Assistant Attorney General
Environmental Bureau
188 West Randolph,
Suite 2001
Chicago,
IL 60601
(312)
814-5282
BY:
-9-
CERTIFICATE OF SERVICE
I,
Mitchell
L.
Cohen, an Assistant Attorney General,
do
certify that
I caused to be mailed this 15th day of December,
2003,
the foregoing Motion to Deem Facts Admitted and for Summary
Judgment to the persons listed on the said Service List by first-
class mail in a postage prepaid. envelope and depositing same with
the United States Postal Service located at 188 West Randolph
Street,
Chicago,
Illinois,
60601.
•Mitchell
L.
Cohen
Assistant Attorney General
Environmental Bureau
188 W. Randolph,
Suite 2001
Chicago,
Illinois 60601