ILLINOIS POLLUTION CONTROL BOARD
March 18, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
COMMUNITY LANDFILL COMPANY,
INC,
Respondent.
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PCB 97-193
(Enforcement - Land)
ORDER OF THE BOARD (by G.T. Girard):
On December 5, 2003, complainant filed a motion for leave to file a third amended
complaint (Mot). On January 30, 2004, Community Landfill Company, Inc. (CLC) filed a
response in opposition to the third amended complaint (Resp.). On February 25, 2004, the
hearing officer entered an order stating that complainant would not be replying to CLC’s
response.
For the reasons discussed below the Board denies complainant’s motion for leave to file
the third amended complaint. The parties shall proceed to hearing, expeditiously, on the second
amended complaint pursuant to the Board’s prior orders for summary judgment.
See
People v.
Community Landfill Company, Inc., PCB 97-193 (July 26, 2001) and People v. Community
Landfill Company, Inc., PCB 97-193 (Aug. 23, 2001); People v. Community Landfill Company,
Inc., PCB 97-193 (Oct. 3, 2002).
BACKGROUND
Respondent operates a permitted landfill located at 1501 Ashley Road in Morris, Grundy
County. The approximate 119-acre site consists of two parcels, Parcel A and Parcel B.
On May 1, 1997, complainant filed an initial six-count complaint alleging that respondent
violated various sections of the Illinois Environmental Protection Act (Act) (415 ILCS 5/1
et seq
.
(2002)) and the Board’s landfill regulations (35 Ill. Adm. Code 807). Specifically the complaint
included allegations that the respondent allowed uncovered refuse, leachate seeps, and landscape
waste at the landfill. On April 3, 1998, complainant filed an amended complaint adding counts
VII through X. These counts relate to the depositing of excess waste in Parcel B at elevations
above the permitted height. On November 24, 1999, a second amended complaint was filed by
complainant adding counts XI through XXII. These additional counts include further allegations
that the improper handling of asbestos and improper disposal of waste tires violated the Act and
Board’s regulations. Counts XI through XXII also include allegations that several permit
provisions were violated.
2
On July 31, 2000, complainant filed a partial motion for summary judgment (concerning
counts V and XII) and on October 30, 2000, respondent filed a cross-motion for summary
judgment. On April 5, 2001, the Board entered an order granting complainant’s motion for
summary judgment on count V, but denying both motions for summary judgment on count XII
and directing the parties to hearing on count XII and the issue of penalties for count V. People v.
Community Landfill Company, Inc., PCB 97-193 (Apr. 5, 2001). On July 26, 2001, the Board
granted a motion to reconsider its April 5, 2001 order. In the order of July 26, 2001, the Board
denied complainant’s motion for summary judgment on count XII and thus granted respondent’s
motion.
See
People v. Community Landfill Company, Inc., PCB 97-193 (July 26, 2001) and
People v. Community Landfill Company, Inc., PCB 97-193 (Aug. 23, 2001).
On October 15, 2001, complainant filed another partial motion for summary judgment.
On October 24, 2001, the hearing officer allowed respondent 90 days to conduct discovery and
an additional 30 days to file a response to the motion for summary judgment. On March 1, 2002,
respondent filed a cross-motion for partial summary judgment. On October 3, 2002, the Board
granted the complainant’s motion for summary judgment on counts III, IV, VII, VIII, IX, X,
XIII, XIV, XVI, XXI, and in part on count XIX. People v. Community Landfill Company, Inc.,
PCB 97-193 (Oct. 3, 2002). The Board also granted respondent’s motion for summary judgment
on counts XI, XVIII, and XXII and dismissed counts XI, XVIII, and XXII. People v.
Community Landfill Company, Inc., PCB 97-193 (Oct. 3, 2002). The Board further found that
genuine issues of material fact existed on counts I, II, VI, XV, XVII, and XX; and therefore,
denied both motions for summary judgment on those counts. People v. Community Landfill
Company, Inc., PCB 97-193 (Oct. 3, 2002).
On December 5, 2003, complainant filed a motion for leave to file a third amended
complaint (Mot). The third amended complaint would add two owners and managers of CLC,
Mr. Edward Pruim and Mr. Robert Pruim as respondents. On January 30, 2004, CLC filed a
response in opposition to the third amended complaint (Resp.). On February 25, 2004, the
hearing officer entered an order stating that complainant would not be replying to CLC’s
response.
DISCUSSION
First, the Board will summarize complainant’s arguments in support of the filing of a
third amended complaint. Next, the Board will briefly recount the arguments of CLC in
opposition to the motion. Finally, the Board will set forth the Board’s analysis, findings, and
decision.
Arguments
In the motion for leave to file a third amended complaint, the complainant states that
since the Board’s granting of summary judgment, the parties have engaged in additional
discovery. Mot. at 1. Complainant deposed CLC’s environmental consultant and corporate
representative during that discovery period. Mot. at 1-2. Based on the information obtained,
complainant seeks to amend the complaint. Mot. at 2. The third amended complaint consists of
the same eighteen counts before the Board on liability, penalty or both.
Id
. The third amended
3
complaint adds two individuals as respondents.
Id
. The complaint alleges that the individuals
were personally involved in the day-to-day operation of CLC and participated in the alleged
violations.
Id
. Complainant argues that the amendment of the complaint will not delay the
resolution of this matter.
Id
.
CLC argues that the Board should deny the motion for leave to file a third amended
complaint because the third amended complaint is “untimely, prejudicial” and the complainant
had several previous opportunities to amend the complaint and did not. Resp. at 4. CLC
maintains that courts have held that the right to amend pleadings is not absolute. Resp. at 4,
citing Hall v. Northwestern University Medical Clinics, 152 Ill. App. 3d 716, 722; 504 N.E.2d
781, 785 (1st Dist. 1987) and Trans World Airlines, Inc. v. Martin Automatic, Inc., 215 Ill. App.
3d 622; 575 N.E.2d 592 (2nd Dist. 1991). CLC asserts that the law in Illinois is well settled that
courts look to four factors in determining whether or not to grant leave to file an amended
complaint. Resp. at 4. The factors are:
1. Whether the proposed amendment would cure the defective pleading;
2. whether other parties would sustain prejudice or surprise by virtue of the
proposed amendment;
3. whether the proposed amendment is timely; and
4. whether previous opportunities to amend the pleading could be identified.
Resp. at 4, citing Universal Scrap Metal, Inc. v. J. Sandman and Sons,
Inc., 337 Ill. App. 3d 501, 508; 786 N.E.2d 574, 581 (1st Dist. 2003) [cites
omitted].
CLC argues that only three of the factors listed above apply to the proposed amended
complaint. CLC notes that the complainant is not asserting the amended complaint cures a
defective pleading. Resp. 4-5. CLC maintains however that the remaining three factors weigh
heavily against the complainant. Resp. at 5. CLC argues the filling is untimely and complainant
had previous opportunities to amend the pleading. Lastly to allow the third amended complaint
would be “extremely prejudicial” to CLC and the proposed new respondents. Resp. at 5.
Board Analysis
The Board’s rules require a motion for leave to file an amended complaint, but the rules
do not set forth specific criteria for rejecting an amended petition. The Code of Civil Procedure
(735 ILCS 5/1-1
et seq
. (2002)) (Code) does not expressly apply to procedures before the Board.
However, if the Board’s rules are silent, the Board may look to the Code (735 ILCS 5/1-1
et seq
.
(2002)) for guidance. 35 Ill. Adm. Code 101.100(b). Therefore, the Board will look to the Code
(735 ILCS 5/1-1
et seq
. (2002)) and the cases interpreting the Code (735 ILCS 5/1-1
et seq
.
(2002)) for guidance in ruling on this motion.
The courts have consistently held that parties do not have an absolute right to amend
pleadings under the Code (735 ILCS 5/1-1
et seq
. (2002)).
See
Zubi v. Acceptance Indemnity
4
Insurance Company, 323 Ill. App. 3d 28, 30-32; 751 N.E.2d 69, 80 (1st Dist. 2001). As CLC has
argued, the courts have enunciated four factors to use to determine whether or not a pleading
may be amended.
Id
. and
see
Resp. at 4. The first factor, whether the amendment cures a defect,
is not at issue here. Complainant does not assert that the amended complaint is necessary to cure
a defect. However, the remaining factors of prejudice or surprise, timeliness, and previous
opportunities to amend, do impact the Board’s decision.
To assess the second factor, whether the other parties would sustain prejudice or surprise
by virtue of the amendment, the Board looks to the current status of the case. This case was
originally filed in 1997 and the Board has already made several substantive rulings including
finding CLC is in violation under several counts of the complaint.
See
People v. Community
Landfill Company, Inc., PCB 97-193 (July 26, 2001) and People v. Community Landfill
Company, Inc., PCB 97-193 (Aug. 23, 2001). The complainant is seeking to add two new
respondents. Thus, the new respondents would find a case where the co-respondent has already
been found in violation on a number of counts. Since the Board has already found violations,
this places the new respondents in a difficult position, and the Board finds that they would be
prejudiced. Also, CLC correctly points out that CLC will be prejudiced because of the new
delay necessary to allow new respondents to fully litigate the alleged violations against them.
See
Resp. at 9. Therefore, the Board finds that allowing the third amended complaint would
prejudice other parties.
In reviewing the third factor, whether the filing is timely, the Board examines the history
of the proceeding. As stated above, this case was originally filed in 1997. Now almost seven
years later and after two Board decisions on summary judgment motions, complainant seeks to
add new respondents. Furthermore, these new respondents are and have been the owners of CLC
since the inception of this case. The Board disagrees with complainant’s argument that adding
these two new respondents nearly seven years after the inception of the case is timely, especially
when the respondents have been owners or officers of CLC since the case was filed. Therefore,
the Board finds that the amended complaint is not timely.
In analyzing the fourth factor, whether previous opportunities for amendment existed, the
Board also looks at the history of the proceeding. Complainant has filed two previous
amendments to the complaint, one on April 3, 1998, and another on November 24, 1999. Thus,
complainant has had not only the opportunity, but has been allowed to exercise that opportunity
by the Board on two prior occasions. In the motion for leave to file, complainant seeks leave
“based on additional information received since the second amended complaint was filed” (Mot.
at 2). Again the complainant does not specify and the Board cannot determine what information
was received that was not previously available. Therefore, the Board finds that this factor
weighs against allowing the amendment.
The Board finds that the third amended complaint would prejudice the other parties, is
not timely, and that complainant previously had the opportunity to amend the complaint.
Because the right to amend a complaint is not absolute, the Board finds that the third amended
complaint should not be accepted. Therefore, the Board denies the motion for leave to file a
third amended complaint and strikes the third amended complaint. The Board further directs this
matter to hearing expeditiously.
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The Board notes that nothing in this order prevents the complainant from filing a separate
enforcement action against the new respondents named in the third amended complaint.
CONCLUSION
After reviewing the arguments, pleadings and facts surrounding the filing of the third
amended complaint, the Board finds that the third amended complaint would prejudice the other
parties, is not timely, and that complainant previously had the opportunity to amend the
complaint. The Board therefore denies the motion for leave to file a third amended complaint
and strikes the third amended complaint. The Board further directs this matter to hearing
expeditiously.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on March 18, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
