)
)
)
)
)
)
)
PCB
No. 04-207
)
(Enforcement)
)
)
)~
)
NOTICE OF FILING
TO:
Ms. DorothyGunn, 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
Chicago,IL 60601
Mr. Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago,IL 60601
PLEASE TAKE NOTICEthat on September 10, 2004, we filedwith the Clerk ofthe Illinois
Pollution Control Board an original and nine copies ofRESPONDENTS EDWARDPRUIM AND
ROBERT PRUIM’S MOTION TO
DISMISS COMPLAINT
and
RESPONDENTSEDWARD-
PRUIM
AND
ROBERT
~PRUIM’S
MEMORANDUM
OF
LAW
IN SUPPORT OF
RESPONDENTS’ MOTION TO DISMISS COMPLAINT,
copies of which are attached and
herewith served upon you.
CQ~i4-\c.
Attorney for Respondent
6~/(~
Mark A. LaRose
Clarissa C. (rayson
Attorney No. 37346
LaRose & Bosco, Ltd.
200 North LaSalle Street, Suite 2810
Chicago, IL 60601
(312) 642-4414
BEFORE
TIlE
ILLINOIS POLLUTION CONTROL BOARD
CLLj-ik S OFFICE
V
~‘
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
ofthe State ofIllinois,
Complainant,
vs.
COMMUNTTY LANDFILL COMPANY,
INC.,. an Illinois corporation,
Respondent.
J~fr
STATE OF ILIJNOIS
Po~ut~onControl
Board
-TillS FILING IS SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
The undersigned, an attorney, on oath states that she caused to be served a copy of the
foregoing RESPONDENTS EDWARD
PRUIM
AND
ROBERT PRUIM’S MOTION TO
DISMISS COMPLAINT
and RESPONDENTS
EDWARDPRUIM AND
ROBERT
PRIUIM’S
MEMORANDUM OF LAW IN SUPPORT OF RESPONDENTS MOTION TO DISMISS
COMPLAINT
to the following parties ofrecord, by placing same in the U.S. Mail, postageprepaid
this
10TH
day ofSeptember, 2004:
Mr. Christopher Grant
Environmental Bureau
Assistant Attorney General
188 West Randolph Street,
20th
Floor
Chicago~Th60601
Mr. BradleyHalloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, IL 60601
Attorney for Respondent
Mark A. LaRose
Clarissa C. Grayson
Attorney No. 37346
LaRose & Bosco, Ltd.
200 N. LaSalle Street
Suite 2810
Chicago, IL 60601
(312) 642-4414
REC~F~~
CLERKS OF~F
SEP
10
2004
STATE OF
~
BEFORE THE ILLINOISPOLLUTION CONTROL
BOAR
~
Contro~
PEOPLE
OF
THE STATE
OF
ILLiNOIS,
)
by LISA MADIGAN, Attorney General ofthe
)
State ofIllinois,
)
)
Complainant,
)
)
PCB No. 04-207
v.
)
(Enforcement)
)
EDWARD PRUIM, an individual, and
)
ROBERT PRUIEM, an indi-vidual,
)
)
Respondents.
)
RESPONDENTS’ MOTION TO DISMISS COMPLAINT
Respondents, EDWARD PRUIM and ROBERT PRUIM, by and through their attorneys
LaRose & Bosco, Ltd., hereby present Respondents’ Motion to Dismiss Complaint and in support
thereof, state as follows:
1.
On May21, 2004, Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney Generalofthe-State ofIllinois flieda complaint in the above captioned matter
(“the 2004 case”).
2.
On July
15,
2004, Respondents were granteduntil September 10, 2004~to answerthe
complaint or to otherwise plead.
3.
Complainant already attempted, and failed in its attempt, to add these respondents to
an almost identical matter before the Illinois Pollution Control Board (“theBoard”), captioned PCB
97-193 (“the 1997 case”). On March 18, 2004, the Board unanimously denied Complainant’s
THIS FILING IS SUBMITTED
ON
RECYCLED PAPER
Motion for Leave to File Third Amended Complaint in the 1997 case where Complainant sought
leave to name these respondents individually. The Board held that the motion was untimely,
prejudicial and that the complainant had numerous opportunities to name the respondents before,
but had failed to do so.
4.
The Board should adoptits ownreasoning articulated in the 1997 case and dismiss
the complaint in the 2004 case, by holding that:
a.
to allow the complaint in the 2004 case to stand would be prejudicial to
Respondents and to Community Landfill Company, respondent in the 1997 case;
b.
the complaint is untimely;
c.
the Complainant hadnumerous opportunities to filea com~ilaintagainst these
individuals previously but failed to do so; and
d.
there is no practical difference in the result if the 2004 case is consolidated
with the 1997 case because all ofthe previously litigated counts will have to be re-
litigated.
5.
The Board should dismiss the complaint in the 2004 case and hold that Complainant
failed to meet its burden under illinois law which requires it to allege thatRespondents had personal
involvement or active participation in the-acts resulting in liability, not just personal involvement
or active participation in the management ofthe corporation.
6.
Alternatively, at aminimum, Count XI should be dismissedbased on the doctrine of
resjudicatasince
a final judgment was rendered by a court ofcompetentjurisdiction on the merits
which is conclusive as to the rights ofthe-parties ancLtheirprivies and constitutes an absolute bar to
a subsequent action involving the same claim, demand or cause ofaction.
7.
A Memorandum ofLaw in Support ofRespondents’ Motion to Dismiss Complaint
is herewith filed.
WHEREFORE, based on the foregoing, and as further enunciated in Respondents’
Memorandum of Law in Support of Respondents’ Motion to Dismiss Complaint, Respondents
respectfully request that the Board grant their Motion to Dismiss Complaint, and dismiss the
complaint in the 2004 case with prejudice.
Respectfully Submitted,
One ofRespondents Attorneys
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD.
200 North LaSalle Street
Suite 2810
Chicago IL 60601
(312) 642-4414
Attomey:No. 37346
CLERK’S O~~E
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOAR)
SEP
10
20C4
PEOPLE OF THE STATE OF ILLINOIS, ))
Pollution
STAJE OF
Control
ILLtNOIS
Board
Complainant,
)
)
vs.
)
PCB No. 04-207
)
(Enforcement)
EDWARD PRUIM, an individual, and
)
ROBERT PRUIM, an individual,
)
)
Respondents.
)
RESPONDENTS EDWARD
PRUIM
AND
ROBERT PRUIM’S
MEMORANDUM OF
LAW IN SUPPORT OF-RESPONDENTS’ MOTION TO DISMISSCOMPLAINT
Respondents, EDWARD PRUIM and ROBERT PRUIM, (referred to collectively as
“Respondents” or “the Pruims”, or individually as “Edward Pruim” or “Robert Pruim”) by and
through their attorneys, LAROSE & BOSCO, LTD., and in opposition to the People ofthe State of
Illinois’ (“People” or “Complainant”) Complaint, respond as follows:
I. Introduction
The allegations in the present complaint have been the subject ofseven (7) years ofintense
litigation in an almost identical matter before the Illinois Pollution Control Board (“the Board”)
against Community Landfill Company (“CLC”), captioned PCB 97-193 (“the 1997 case”). The
ongoing litigation in-the 1997 case has included: a complaint filed i n 1 997, a First Amended
Complaint filed in 1998, a Second Amended Complaint filed in 1999, and substantive rulings on
liability both for and against CLC in both 2001 and 2002.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
1
The People failed in its recent attempt to file a Third Amended Complaint in the 1997 case
wherein it sought leave to add Edward Pruim and Robert Pruim individually as additional
defendants. The People’s Motion forLeave to File a Third Amended Complaint was unanimously
denied by the Board on March 18, 2004 on the grounds that to grant this leave would be prejudicial,
untimely and that the complainant previously had the opportunity to amend the complaint. (See
Order ofthe Board dated March 18, 2004, attached as Exhibit A).
Complainant only now, in 2004, has filed a “new” complaint (“Complaint” or “2004
Complaint”) naming Edward Pruim and Robert Pruim, individually, as respondents. (See 2004
complaint attached as Exhibit B). It is important to note that the allegations contained in the
People’s complaint against Edward Pruim and Robert Pruim individuallyare nearly identical-tothose
contained in its failed, proposed Third Amended Complaint. Complainant’s sole allegations in the
2004 complaint against Edward and Robert Pruim are based on documents that the Illinois
Environmental Protection Agency (“Agency”) has had in its possession since 1993,
1995
and 1996,
long before the original complaint was even filed in the 1997 case against CLC.
The Board should dismiss the 2004 complaint in its entirety for the following reasons:
(A)
The Board should apply its own reasoning in denying Complainant’s Motion for
Leave to IFile a Third Amended Complaint in the 1997 case and dismiss the 2004
complaint because the 2004 complaint is untimely, prejudicial and the Complainant
had numerous previous opportunities to filethe 2004 complaint (See Order ofMarch
18, 2004 attached as Exhibit A);
(B)
The Complainant has failed to meet its burden imder Illinois law to allege facts
establishing that the Respondents had personal involvement or active participation
in the acts resulting in liability, not just personal involvement oractive participation
2
in the management ofthe corporation;
(C)
If Complainant is allowed to file this “new” complaint against Edward Pruim and
Robert Pruim, the effect will be the same as if it had been allowed to file a Third
Amended Complaint.
(D)
Alternatively, at a minimum, Count XI should be dismissed based on the doctrine
ofresjudicata
since the identical count (Count XII in the 1997 case) was dismissed
against CLC in the Board’s Order of July 26, 2001. (See Order attached as Exhibit
C);
II. Procedural History
On May 1, 1997, Complainant filed its first complaint in this matter. The 1997 Complaint
named CLC as the sole respondent and contained six (6) counts alleging violations relating to
managing refuse and litter, leachate flow, landscape waste, financial assurance, failure to file a
significant modification permit, and water pollution. Complainant then filed a First Amended
Complaint on April 3, 1998; again CLC was the only respondent. The First Amended Complaint
included four (4) additional Counts alleging violations relating to overheight ofthe landfill.
On November 24, 1999, over the Respondent’s strenuous objections, Complainant filed a---
Second Amended Complaint, again only naming CLC as respondent. (See Second Amended
Complaint attached asExhibitD). The Second Amended Complaint included twelve(12) additional
Counts, for a total oftwenty-two counts, alleging violations relating to asbestos, used tires, the gas
collection facility, leachate disposal, final cover, financial assurance, and failure to provide revised
cost estimates.
The 1997 case has been the subject ofthe exchange ofhundreds-of documents comprising
thousands ofpages, numerous depositions, and cross-motions for summaryjudgment by the parties.
3
On April
5,
2001, the Board ruled against CLC on Counts V and XII of the Second Amended
Complaint. CLC filed a motion forreconsideration on May
15,
2001. On July 26, 200-1, the Board
reversed its decision on Count XII by finding in favor ofCLC on li-ability and dismissing that count.
The Board affirmed its ruling against CLC on Count V and ordered a hearing on penalty.
On October2, 2002, the Board issued an extensive order regardingthe parties-’ cross-motions
for summary judgment. The Board found in favor ofCLC on Counts XI, XVIII, and XXII ofthe
Second Amended Complaint and dismissed those counts against CLC. The Board denied the
Complainant’s motion for Summary Judgment ontounts 1,11, VI, XV, XVII, XIX (in part) and XX
ofthe Second-Amended Complaint, and ordered a hearing on liability on those Counts. Finally, the
Board found in favor of Complainant on Counts ifi, IV, V, VII, Vifi, IX, X, Xffl, XIV, XVI, XIX
(in part) and XXI and ordered a hearing on penalty on those counts. For the Board’s convenience,
a chart summarizing the current status ofthe Counts in the 1997 case with a cross-reference to the
2004 complaint is attached as Exhibit E.
On December
5,
2003, Complainant -filed a motion before the Board wherein it requested
leave-to file its Third Amended Complaint naming Edward Pruim and-Robert Pruim, the principals
ofCLC, as additional defendants. Thatmotion was unanimously deniedby the Board on March 18,
21)04. (See Exhibit A).
There are scant differences between Second Amended Complaint in the 1997 case and the
2004 complaint that is-the subject ofthe present Motion taDismiss. Complainant has simply taken
the Second Am-ended Complaint and inserted general allegations against the Respondents that they
“caused or allowed” certain acts to occur in violation of the Environmental Protection Act (“the
Act~’).The allegations contained in the 1-997 and 2004 complaints will be compared in Section ifi
(B)(1) below.
4
III.
Argument
A.
The Board should apply its own reasoning and dismiss the present complaint against
Edward Pruim and Robert Pruim on the grounds that it is untimely, prejudicial and
theComplainant had numerous previous opportunities
to-file
a-complaintagainstthese
respondents but failed to do so.
TheBoard should apply the reasoning it utilized iadenying Complainant’s Motion forLeave
to file a Third Amended Complaint in the 1997 case naming Edward Pruim and Robert Pruim- as
respondents becausethe 2004 complaint is untimely, prejudicial andthe Complainanthadnumerous
-previous opportunities to filethe 2004 complaint but failed to--do so. Ifthe Board allows the 2004
complaint to stand, the ultimate effect willbe the same as if it had grantedthe People’s Motion for
Leave to File a-Third Amended Complaint because both sets ofrespondents, CLC (the 1997 case)
and Edward Pruim and Robert Pruim (the 2004 case) will have to litigate all counts. The Board-has
already held that the Third Amended Complaint would prejudice the other parties, was not timely,
and that the Complainant had previous opportunities to the amend the complaint. (See Exhibit A,
page 4). The Board should now apply the same reasoning to the 2004 complaint and dismiss it in
its entirety.
1.
The Present Complaint-is Untimely
The 2004 complaint was filed on-May21, 2004, more than 7 years afterthe complaint in the
T997 case was filedon May 1, 1997. Two additional amended pleadings in the 1997 case were filed
in 1998 and 1999. The parties’ cross-motions forsummaryjudgment on seventeen (17) counts were
ruled on by the Board on October 4, 4002, nearly two years ago, and on two (2) counts on April
5,
2001, nearly 3 1/2 years ago. Almost one (1) year has passed since discovery closed in the 1997 case
on November
25,
2003. Every allegation against the Respondents in the 2004-case was known to
the Complainant at the time-the 1997 was filed. The Board held that the ThirdAmended Complaint
5
was untimely, stating in its Order that “these new respondents have been the owners ofCLC since
the inception ofthe -case” and “therespondents have been owners or officers ofCLC since the case
was filed”. (See Exhibi-t A, page 4). Nothing has changed and the Board should againhokl that the
2004 complaint is untimely.
2.
Complainant has had Numerous Previous Opportunities to File a Complaint
Against the Respondents
The 2004 complaint contains numerous general allegations against the Respondents, the
sufficiency of whiëh will be fully addressed in Section ifi B; below. Aside from those general
allegations,-only Count VII (Depositing Waste in Unpermitted Portion ofLandfill) and Count IV
(Failure to-Provide and Maintain Adequate Financial Assurance Pursuant to the April 20, 1993
PermiO of the 2004 complaint contain any specific allegations against either Respondent. These
allegations are identical in content to those rejected by the Board in its denying Complainant’s
Motion for Leave to File a Third Amended Complaint where the Board held that “complainanthas
had not only the opportunity, but hasbeen allowed to exercise that opportunity by the Board on two
prior occasions.” (See Exhibit A, page 4).
In regard to Count VII, P-aragraph 20 in Complainant’s 2004 complaint alleges:
“On or about January 17,
1995,
the Respondents submitted a Solid Waste Capacity
Certification-to Illinois EPA, signed by Respondent Edward-Pruim, reporting that there was no
remaining capacity in Parcel B as ofJanuary 1, 1995.
(2004 Complaint, Exhibit B, Count VII, ¶ 20).
Paragraph 22 in Count Vil-of the present complaint alleges:
“On or about January
15,
1996, the Respondents submitted a Solid Waste Capacity
Certification-to Illinois EPA, signed by Respondent Robert Pruim, reporting that the Respondents
Had received o ver 540, 001) cubic yards for deposit in Parcel B between January 1,
1995
and
December 31,
1995.”
(2004 Complaint, Exhibit B; Count VII, ¶ 22).
6
The documents referred to in Count VII ofthe 2004 complaint have been in the Agency’s
possession since January,
1995
and January, 1996 respectively. Theywere available to Complainant
fully twenty-eight (28) and sixteen (16) months respectively before even the 1997 complaint was
filed. By the time Complainant filed its Second Amended Compiai-nt on November 24, 1999, the
records had been in the Agency’s possession for nearly five
(5)
and four (4) years respectively.
Similarly, in regard to Count IV, Paragraph 22 in the 2004 complaint alleges:
“Respondents Edward Pruim and Robert Pruim failed to arrange financing and increase the
total amount of CLC’s financial assurance to $1,342,500.00 within 90 days after the Agency
approved its cost estimate on April 20, 1993.”
(2004 Complaint, Exhibit B, Count IV, ¶ 22).
It almost goes without saying that obviously, any alleged failure by the respondents to
increase the amount offinancial assurance within 90 days after April 20, 1993, would have been
known to the Complainant in approximately July, 1993, more
than eleven (11)
years
ago. In
fact,
it would have been known to the Complainant for nearly four (4) years before it filed the 1997
complaint in May, 1997 and which it has amended twice.
Complainant failed in its attempt to have the respondents added individually to the 1997
complaint and therefore, has-resorted to seeking reliefagainst the respondents separatety. The Board
should-not allow it to succeed and should follow its own reasoning as set forth in its Order ofMarch
18, 2004 wherein it denied Complainant’s Motion for Leave to File-a ThirdAmended Complaint,
finding that Complainant had had the opportunity to file a complaint against Edward Pruim aird
Robert Pruim but-failed to-do so. The Board should now reachthe same conclusion that it did only
six (6) months ago.
7
3.
Allowing the 2004 Complaint to Proceed will Result in Prejudice to the
Respondents and CLC
-
The documents- cited by Complainant in support ofthe allegations in Count IV and Count
VII have been in the Complainant’s own files at the time that all pleadings in the 1997 case were
filed. The alleged facts behind the allegations concerning Edward and Robert Pruim were known
to the Complainant forbetween eight (8) and eleven (11) years.
On October 2, 2002, the Board made substantial ru-lings both for and against CLC as sole
respondent on the parties’ cross-motions for summary judgment based on the Second Amended
Complaint. These substantive rulings include: rulings on Counts XI, XVffl, and XXII in favor of
CLC thereby dismissing those counts; rulings on Counts 1,11, VI, XV, X\TII, XIX (in part) and XX
in favor of CLC, findingthat genuine issues_of material fact precluded summary judgment and
ordering a hearing on liability; and rulings in favor of Complainant on Counts ifi, IV, VII, Vifi, IX,
X, Xffl, XVI, XIX (in part) and XXI, and ordering a hearing on penalty. In addition, on July 26,
2001, following CLC’s Motion forReconsideration, the Board ultimately ruled in favor ofCLC on
Count XII of the Second Amended Complaint, thereby dismissing that count; and in favor of
Complainant on Count V ofthe 1997 complaint and ordering a hearing on that count. (See July 26,
2001 order, Exhibit C). In summary, at this point, the Board has ordered a hearing on liability for
seven (7) counts, and a hearing on penalty for twelve counts, all against CLC alone.
Ifthe 2004 complaint is allowed to proceed against the respondents, all ofthese counts that
have already been the subject ofmore than seven (7) years ofintense litigation, including rulings on
summaryjudgment in favor ofthe Complainant, would have to be re-litigatedby the parties. In fact,
a likely outcome would be that Complainant would move to have the 2004 case consolidated with
8
the 1997 case. The effect of-consolidating these two cases would have the same practical effect of
amending the complaint. As the Board stated in its March 18, 2004 order order, “the new
respondents would find a case where (CLC) 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 theywould be prejudiced.” (See Exhibit A, page 4). The Board
also reasoned that CLC was correct in pointing out that it would be prejudiced “because ofthe new
delaynecessary to allow new respondents to fully litigate the alleged vio-lations againstthem.” (See
Exhibit A, page 4). Again, nothing has changed in this case since March 18, 2004 and the Board
should dismiss the 2004 complaint in itsentirety.
The Board has already determined that amending the complaint was untimely, prejudicial to
CLC, and improper given that Complainant had numerous opportunities to previously amend the
complaint. (See Exhibit A, page 4). The Board should not allow the Complainant to reach the same
destination simply by taking -another route. The Board should see through this procedural ruse and
grant Respondents’ Motion to Dismiss and dismiss the 2004 complaint in its entirety.
B.
Complainant has Failed toAllege Facts Establishing thatthe Respondents had Personal
Involvement or Active Participation in the Acts Resulting in Liability.
The Complainant has failed tcuneetits burden under Illinoiswhich requires it to allege facts
establishing that the Respondents had personal involvement or active participation in the acts
resulting in liability, notjust-personal involvement or active participation in the management ofthe
corporation. People v. Tang, 346 Ill.App.3d 277, 289, 805 N.E.2d 243, 253-54 (1St Dist. 2004). It
is insufficient to merely makeallegations that an officer~‘caused or allowed” certain actions to occur
in violation of the Act or that the officers were acting in their corporate capacities. U.S. v.
9
Bestfoods, 524 U.S. 62, 72 (1998); People v. Tang, 346 Ill.App.3d 277, 289, 805 N.E.2d243,
253-
54 (l’tDist. 2004).
1.
Complainant’s Allegations that Respondents
“Caused
or Allowed” Acts are
Insufficient
In order for liability to attach personally to corporate officers under illinois law, the
Complainant must allege facts establishing that the Respondents had personal involvement oractive
participation in the acts resulting in liability, not just persimal involvement in the management ofthe
corporation. People v. Tang, 346 Ill.App.3d 277, 289, 805 N.E.2d 243,
253~54(15t
Dist. 2004). It
is insufficient to merely allege that respondents “caused or allowed” c-ertain actiOns to occur in
violation ofthe Act; Id.
A review ofthe facts alleged against respondents in
Count I alone
ofthe 2004 complaint
reveal a slew ofjust such general allegations:
a.
Respondents managed, operated and co-owned CLC
b.
Edward Pruim and Robert Pruim:
*
were responsible for and signed and submitted all permit applications and
report&to the IEPA related-to the landfill
*
jointly directed and managed CLC’s landfill operations
*
caused and allowed the deposit ofwaste in the landfill
*
negotiated and arranged for surety bonds and letters ofcredit relating to the
landfill
*
were responsible for ensuring CLC’s compliance with pertinent
environmental laws and regulations
-
c.
Respondents failed to remove or cause employees to remove refuse in peri-meter
ditches and the retention pond and allowed refuse to remain in perimeter ditches
10
d.
Respondents allowed leachate seeps to erode areas of the landfill and expose
previously covered refuse
e.
Respondents allowed litter and refuse to remain exposed.
And this is only Count I. (See 2004 Complaint, Exhibit B, Count I).
Additional examples ofallegations that Respondents “caused or allowed” certain acts are
presented throughout the 2004 complaint by Complainant. The wording may vary slightly from
Count to Count, substituting in “failed to cause” or “failed to take sufficient action” butthe effect
is the same: Complainant merely alleges that Respondents “caused or allowed” certain acts, as
follows:
f.
Respondents failed to take sufficient action or direct their employees to take
sufficient action to prevent leachate seeps from exiting the landfill (Count II);
g.
Respondents caused and allowed the landfilling oflandscape waste at the site (Count
ifi);
h.
Respondents failed to arrange financing and increase total amount of financial
assurance to $1,342,500.00 between July 13, 1996 and June 20, 1996 (Count IV);
i.
Respondents failed to cause CLC to file required sign mod for Parcel--B by June 15,
-
1993 (Count V);
j.
Respondents failed to take sufficient action, or direct their emplo-yees to take
sufficient action, to preventleachate from flowing offsite to the Illinois River (Count
VI);
k.
Respondents caused and allowed the depositof refuse in unpermitted portions of
Parcel B (Count-Vil);
1.
Respondentw have caused and allowed the deposition of waste in unpermitted
portions ofParcel B (Count VIIE);
m.
Respondents caused or allowed the consolidation of refuse at the site above the
permitted elevation of580 feet above mean sea level (Count IX);
n.
Respondents failed to obtain a supplemental permit for CLC (Count X);
11
o.
Respondents failed to cause CLC to submit their application for a sign mod by June
15, 1993 (Count XI);
p.
Respondents were allowing the mixing of waste tires with municipal waste and
placement ofthe mixed waste in the active are ofParcel A (Count XII);
q.
Respondents, by their acts and omissions, caused and allowed violations (regarding
blowing litter) (Count XIII);
r.
Re~pondentsallowedcommncrn~ntaf~he~p~rationotgasfacflitywthouthaving
first provided the information to the IEPA (Count XIV);
s.
Respondents failed to take any action, orauthorize ancLdirecttheir employees to take
any action, to prevent erosion, ponding, and cracking and failed to provide proper
vegetative cover (Count XV);
t.
Respondents caused and allowed leachate to be pumped from the landfill into new
cells (Count XVI)
-
u.
Respondents caused or allowed violations regarding not increasing financial
assurance (Count XVII);
v.
Respondents caused or allowed placement of leachate in areas that had not been
certified or approved by the IEPA -(Count XVffl); and, finally,
w.
Respondents failed to cause CLC to provide a revised_cost estimate by 12/26/94
(Count XIX).
(See 2004 Complaint, Exhibit B).
-
It is insufficient to merely allege that respondents “caused or allowed~’certain actions to
Dist.occur2004).in
violationAs
evidencedofthe
Act.bythePeopleallegationsv. Tang,outlinedabove,346 IlI.App. 3dComplainant277, 289,
-805
clearlyN.E.2dhas243,failed253-54to allege(Pt
facts establishing the respondents’ active participationorpersonal involvement in the actsresulting
in liability~The 2004 complaint should be dismissed in its entirety.
12
2.
None oftheAllegations in the2004 Complaint Rise to the Levelwhere Liability
Should Attach.
Illinois courts have made it abundantly clear that in order forliability to attach to- a corporate
officer individually, as opposed to the corporation itself, the corporate officers must have active
participation in the acts resulting in liability. People v. Tang, 346 Ill.App. 3d 277, 289, 805 N.E.2d
243, 253-54 (1St Dist. 2004). The complainant must allege more than that the corporate officer held
a management position, had general corporate authority, orserved in a supervisorycapacityin order
to establish individual-liability under the--Act. In addition, the United States Supreme Court hasheld
that activities thatinvolve the facility such as monitoring performance, supervising finance and
capital budget decisions, and articulating general policies and procedures should- not give rise to
direct liability. U.S. v. Bestfoods, 524 U.S. 62, 72 (1998). These are just the types of activities
performed on behalf of the corporation that the Complainant sets forth in Count I: signing and
submitting permit applications; jointly directing the landfill operations; and arranging for surety
bonds. These are the kinds ofactivities that do not give rise to individual liability.
In cases where liability did attached, it was found that the officer personally ran operations
at the site, spent a great deal of time at the site, directly supervised the employees, and personally
applied fertilizer and pesticides to farm fields by operating a floater. People v. Agpro, 345-Ill.App.3d
1011, 1028-1029, 803 N.E.2d 1007, 1019
(2~~d
Dist. 2004). Tn applying Illinois law~the Seventh
Circuit found that the allegations in the complaint stated a claim forviolations -ofCERCLA where
it was alleged that the officer had knowingly exercised direct control over the substances at issue;
actuallyacceptedloads ofmaterial that included the substances at issue; and directedand controlled
the employees who caused the contamination. Arst v. Pipefitters, 25 F.3d 417, 421
(7th
Cir. 1994).
13
Similarly, an officer was found liable where it was held that he had supervised the day to day
operations of the landfill by negotiating waste-dumping contracts with the owners of the waste,
directing where the wastes were to be dumped, and designing or directing measures forpreventing
toxic substances in the wastes from leaching into the ground. (BFI v. Ter Maat, 195 F.3d
953,
958
(7th Cir. 1999).
-
Nowhere in the 2004 complaint does Complainant allege that Robert Pruim and/or Edward
Pruim manage the day to day operationsofCLC, beyond vague and general allegations of“managed,
operated and co-owned CLC” (Exhibit B, Count I, ¶4) and “jointly directed and managed CLC’s
landfill operations” (Exhibit B, Count I, ¶8). Complainant does make these allegations because it
cannot. In fact, sworn testimony indicates the exact opposite: Respondents’ complete lack of
involvement with the landfill on a day to day basis beyond their purely corporate functions. (See
Deposition testimony ofRobert Pruim, attached as Exhibit F, pp 12-13). Robert Pruim testifiedthat
his and Edward Pruim’s responsibilities were “typical corporate functions” such as securing
customers, paying bills and collections. (ExhibitF, pp. 12-13). The previously cited deposition of
Robert Pr~iimwas taken in the 1997 case on October 29, 2003. Edward Pruim was not deposed by
Complainant in the 1997 case.
The allegations in the 2004 complaint are- insufficient -to proceed against Respondents
individually. The Complainant has failed to allege active participation orpersonal involvement in
the acts resulting in liability and have additionally failed to allege that respondents were involved
in the day to operations ofthe landfill. Instead, it is clear that their involvement is limited to acts
taken in their corporate capacities.
14
C.
Count XI Should be Dismissed Based on the Doctrine
-of
Res Judicata
Alternatively, at a minimum, Count XI should be dismissed based on the doctrine of
res
judicata
since the identical count (Count XII in the 1997 case) was dismissed against CLC in the
Board’s Order ofJuly 26, 2001 (See attached as Exhibit B). The doctrine
of resjudicata
provides
that a finaljudgment rendered by a court of-competentjurisdiction on the merits is conclusive as to
the rights ofthe parties and theirprivies, and, asto them,constitutes an absolutebar to a subsequent
action involving the same claim, demand or cause ofaction. Nowak v. St. Rita High School, 197
Ill.2d 381, 389, 757 N.E.2d 471, 477 (2001).
For -the doctrine
of resjudicata
to apply, the following three requirementsmust be satisfied:
(1) a court ofcompetentjurisdictionrendered a -finaljudgment on the merits; (2) there is an identity
of cause of action; and (3) there is an identity ofparties or their privies. Nowak v. St. Rita High
School, 197 Ill.2d 38-1, 390, 757 N.E.2d 471, 477 (2001). All three requirements have been met in
this case.
1.
Rendering of a Final Judgment on-the Merits by a Court of Competent Jurisdiction
For the doctrine of
resjudicata
to apply, the first requirement is that a court ofcompetent
jurisdictionrendered a final-judgment on the merits. Nowakv. St. Ri-taiHigh School, 197 ill.2d 381,
390, 757 N.E.2d 471, 477 (200i). This requirement is met-because the Illinois Pollution Control
Board is a court ofcompetentjurisdictionthat rendered a finaljudgment on the merits, having ruled
in favor ofCLC on July 26, 2001. (See Exhibit B).
2.
Identity of Cause ofAction
-
For the doctrine of
resjudicata
to apply, the second requirement is that there is an identity
of causes ofaction between the earlier and subsequent causes ofaction. Nowak v. St. Rital High
H
15
School, 197 Ill.2d 381, 390, 757 N.E.2d 471, 477 (2001). This requirement is met because the
allegations contained in Count XII of the 1997 Complaint are substantively the same as the
allegations contained in CoimtXI ofthe 2004 Complaint. (See 1997 Complaint attached as Exhibit
D; and 2004 Complaint attached as Exhibit B).
3.
Identity of Parties or their Privies
For the doctrine
of_resjudicata
to apply, the third requirement is that there is an identity of
the parties ortheir privies between the earlier and subsequent litigation.
.
Nowak v. St. Rital -High
School, 197 Ill.2d 381, 390, 757 N.E.2d 471, 477 (2001). Tn Grisanzio v. Bilka, the court heldthat
-the identity ofparties criterion was satisfied where the defendants in the subsequent litigation were
the sole shareholders ofthe corporate defendant in the-priorlitigation. 158 Ill.App.3d 821, 827, 511
N.E.2d 762,766 (2’~”Dist. 1987). This is exactly the same scenario as in the 1-997 case against CLC
and the 2004 case against the respondents.
Respondents have satisfied all three elements. Count XI in the 2004 complaint was already
ruled on by the Board in 1997 case in CLC’s favor and based on the principles of
resjudicata,
Count XI should be dismissed against the respondents in the 2004 case..
IV.
Conclusion
Notwithstanding its own suggestion to the Complainant that~’.
.
.nothing in this o-rderprevents
the complainant from filing a separate enforcement action against the newrespondentsnamed in the
third amended complaint”, the Board should follow its own reasoning as articulated in its Order of
March 18, 2004, denying complainants motion for leave to file a Third Amended Complaint, and
prevent the 2004 -complaint from going forward. It should find that-to allow it’s filing is untimely,
prejudicial and that Complainant had numerous opportunities to do so before but chosenot to.
16
Further, the Board should find that Complainant’s allegations are insufficient in thatit fails to allege
active participatiomor direct involvement in the act that resulted in liability nor does it allege any
involvement in the day to da-y operations ofthe landfill beyond that ofits corporate functions.
WHEREFORE, Respondents Edward Pruim and Robert Pruim respectfully requestthattlie
Board grant its Motion to Dismiss with prejudice.
Resvectfully Submitted,
One ofRespondent’s Attorneys
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd.
-
200 North LaSalle Street, Suite 2810
Chicago, IL 60601
(313) 642-4414
AttyNo~37346
17
