RECEnJED
CLERK’S OFFICE
OCT -4 2004
BEFORE THE ILLINOIS POLLUTION CONTROL
BOAR~TATEOFILLINO~
Pollution Control Board
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
General of the State of Illinois,
Complainant,
-vs-
)
PCB No. 04-207
(Enforcement)
EDWARD PRIJIM, ‘an individual, and
ROBERT PRUIM, an individual,
Respondents.
)
NOTICE OF FILING
PLEASE TAKE NOTICE th~t I have today, October 4, 2004, filed
with the Clerk of the Illinois Pollution Control Board,
Complainant’s Response to Motion to Dismiss, a copy of which is
attached and herewith served upon you.
Respectfully Submitted,
LISA
MADIGAN
Attorney Gener~’l of the
S e of him is
By Ch stopher Gran~~~
As stant Attorney General
Environmental Bureau
188 West Randolph, #2001
Chicago, IL 60601
312-814-5388
ERK S. OFF!CE
~BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Q~f
- 4 2004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATEOFILLINOIS
•
by LISA MADIGAN, Attorney
)
Pollution Control Board
•
..
General of the State of Illinois,
Complainant,
-vs-
)
PCB No. 04-207
•
)
(Enforcement)
EDWARD PRUIM, ai~ individual, and
ROBERT PRTJIM, an individual,
)
Respondents.
COMPLAINANT’S RESPONSE TO MOTION TO DISMISS
Now comes Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General of the State of Illinois, and in
response to Respondents’ Motion to Dismiss, states as follows:
On May 21, 2004, Complainant filed its Complaint in this
matter. Respondent Robert Pruim was personally served on May 28,
2004. Edward Pruim was served by certified mail on July 10,
2004.
•
.
BACKGROUND
Respondents are co-’owners of Community Landfill Company
(“CLC”), an Illinois dorporation. Complainant has filed two
cases against CLC, which are openand pending before the Board.
The older of the two cases, PCB 97-193, alleges violations
similar to the alleged violation in the instant case. The.
second pending matter, PCB 03-191, alleges unrelated violations.
On March 18,2004, the Board rejected Complainant’s attempt
1
•to
‘include allegations against Edward and Robert Pruim in PCB 97-
193, through amendment.
However, the Board stated that
“...nothing
in this order prevents the complainant from filing a
separate enforcement action against the new respondents named in
the, third amended complaint i.e. the Pruims
.“
Complainant has
done so in the instant case.
A motion to dismiss admits all well pled facts. in the
complaint, and all inferences must be drawn in favor the
• nonmovant.
Skokie Valley Asphalt Co., Inc.
et
al,
PCB 96-98
(June 5, 2003), slip op. at 7. Respondents seek dismissal on the
basis that:
.
1. the BOard’s March 18, 2d04 order in PCB 97-193. precludes the
filing of the instant, complaint, and:
2. COmplainant has failed to adequately plead the violations
against the Respondents.
Respondents’ arguments fail to provide grounds for dismissal
of this matter. The Board’s prior order in PCB 97-193 does not
bind this case. Moreover, Complainant has more than adequately
alleged violations against the Respondents. Respondents’ Motion
to Dismiss should be denied, and the Respondents should be
diiected to appropriately answer Complainant’s complaint.
THE.
MARCH
18, 2004 BOARD ACTION
In its March 18, 2004 order, the Board applied factors
interpreting 735 ILCS 5/2-616 (a)
(Citing
Zubi v. Acceptance
2
Indemnity Insurance Co.
323 Ill. App. 3d 28). Specifically the
Board found that the earlier finding of violation
against the
o’~igjnal Respondent would prejudice the additional Respondents.
Slip op. at 4. Additionally the Board found that addition. of the
Respondents to that case was not timely.
The factors applied to Complainant’s attempted amendment in
.PCB 97-193 have no applicability to the instant case. CLC is not
a party to the instant case, and could therefore not be
prejudiced. Neither are Respondents Edward Pruim and Robert
Pru•im prejudiced in this case by a prior finding of liability,
aga~inst another entity, ‘in PCB 97-193.
The •Board has consistently recognized that no statute of
limitations applies to enforcement proceedings under the Illinois
‘Environmental Protection Act (“Act”), 415 ILCS
s/i
et seq.
(2002).
People v~ Peabody Coal Company,
‘
PCB 99-134 (June 5,
2003, slip op. at 6.
See also Pielet Brothers Trading, Inc. v.
Pollution’ Control Board,
110 Ill. App. 3d 752.
Respondents’ arguments, are akin to he affirmative defense of
laches.
HOwever laches is not a proper basis for a motion to
• dismiss. See
e.g.
People v. Skokie Valley Asphalt,
‘PCB 96-98
(June 5, 2002, slip op. at 6) (delay of 17 years before
Complainant initiated eziforcement not grounds for dismissal).
3
COMPLAINANT
HAS
PLED SUFFICIENT FACTS TO SUPPORT LIABILITY
Respondents also claim that Cothplainant h~s failed to plead
sufficient facts against the Respondents.
• ,
In support of their argument, Respondents cite
People v.
Tang,
346.111. App. 3d ~77 (1st Dist. 2004).
However,•
Complainant believes that the pleading standards adopted by the
Tang
Court should not be considered by the Board in consideration
of this motion. The applicable standard was described in
People
v. •C.J.R. Processing et al.,
269 Ill. App. 3d 1013 (3d Dist.
1995)
•
Both the site of alleged violations and the location of
hearing in case is Grundy County, within the jurisdiction of the
Appeliate.Court
of Illinois,
Third District.
‘
Any appeal from the
Board’s ruling would be ~‘ieardin
that
Court.. Because the
Tang
and
C.J.R.
cases set different pleading standards,’ the
Tang
case
is not binding and should not be considered persuasive.
In
C.J.R.,
the Court reversed~dismissal of the individual
Defendant by the trial court. The Third District held that the
General Assembly intended to impose liability on those
res~ons~,blefor harming the environment, including corporate
officers.’ The court stated that “ijmposing liability only upon
the corporations and not the individuals would undermine the
Ei~v±ronmental Protection Act’s purposes.” 269 Ill. App. 3d, at
.1012,.
In
C.J.R.,
the Court stated that corporate officers could be
4
held liable for personal involvement or active participation in a
violation of the Act.
269 Ill. App. 3d 1018.
However, the,Court
‘found that the State sufficiently plead against the corporate
officer by merely alleging that the Defendant “caused or allowed”
the violations.
Id.
Thus, the 3d District set an extremely
liberal pleading standard for individual liability under’the Act.
There is a split between the 1st and 3d Districts on the
pleading issue. Where
C.J.R.
held that it was suffici~entto plead
that an individual defendant ‘caused or allowed’ the violations,
the
Tang
Court stated: “The State has made conclusory allegations
that Tang “caused or allowed” certain actions to occur in
violation’of the Act”. 346 Ill. App. 3d, at 289. The
Tang
Court.
stated that a• Plaintiff
“. .
.must allege facts establishing that
the’ corporate officer, had personal involvement ‘or active
participation in the managethent of the corporation.
Id.
This is
essentially the same standard cited in the
C.J.R.
decision.
However, unlike
C.J.R.,
allegations that an individual “caused’or
allbwed” violations were deemed to be insufficient.
Complainant again notes that, to the extent that
Tang
disagrees with
C.J.R.,
it should not be considered by this Court-
C.J.R.
is the applicable law. HOwever, Complainant believes that
under either standard, it has sufficiently plead violations of
the Act against the Respondents, individually. In their motion,
‘Respondents emphasize the use of ‘caused and/or allowed’
5
allegations in the Complaint. The
Tang
Court did not focus on
‘the mere’ use of ‘cause or allow’, but rather the absence of
specific factual allegations i.e. ‘causing or allowing the
violatiOn’.
A fair reading of the Complaint shows that Complainant has
alleged,
inter alia,
the following facts:
Incorporated by reference in all counts:
Edward Pruim and Robert
,Pruim maniaged, operated, and co-owned CLC, directed and managed
the deposit of waste in the landfill, negotiated bonds and
letters of credit pertaining to the landfill, were responsible
for signing and submitting all required Illinois EPA reports and
permit applications, and were responsible CLC’s compliance with
regulations.
COUNT I:
“Edward Pruim and Robert Pruim who controlled
ope’rationC at the landfill allowed leachate seeps to erode the
‘landfill,
allowed refuse to remain in perimeter ditches, and
allowed litter and refuse to remain exposed and uncontained at
the landfill.
COUNT II:”
Edward Pruim and Robert Pruim who, were responsible
‘for CLC”s, compliance with regulations, failed to take action to
prevent landfill leachate from entering waters of the state, and
thus ‘allowed’ violatiOns of the Act.
COUNT III:
‘Edward Pruim and Robert Pruim who managed the
deposit of waste at the landfill, caused the landfilling of
landscape waste on July 28, 1998.
COUNT IV:
‘Edward Pruim and Robert Pruim who arranged for surety
bonds and letters of credit for landfill operations failed to
increase OLC’s financial as~urance as required.
‘Count V: Edward Pruim and Robert Pruim ‘who controlled CLC and
were responsible for submitting all permit applications failed
to cause CLC to timely submit its application for significant
modification of permit until three years after it’was.due.
‘Count VI: Edward Pruim and Robert Pruim who controlled CLC and
managed its operations failed to take action, and failed to
direct employees to take action, to prevent leachate flow into
waters of the State.
•
6
Count VII: Edward Pruim and Robert Pruim who managed the deposit
of waste “caused waste to be deposited in unpermitted portions of
th~Morris Community Landfill.
Cou~it VIII: similar,fact, allegations t,o Count VII
Count IX: similar fact allegations to Count VII
‘Count X: Edward Pruim and Robert Pruim who were responsible for
obt’aining,:CLC’s permits failed to obtain a required permit for
waste disposal over 580 feet.
‘
Count XII: Edward Pruim and Robert Pruirn who directed and
managed landfill operations, allowed waste tires to be mixed
with municipal ‘solid waste at the landfill ~n July 28, 1998.
Count XIII: Edward Pruim and Robert Pruim who directed and
managed landfill operations failed to prevent blowing litter at
the landfill, and thereby, allowed violations of CLC’s permit.
Count XIV: Edward Pruim and Robert Pruim who owned, controlled
and, managed CLC allowed commencement of gas.control operations
at the facility in violation of CLC’s Permit.
Count XV:. Edward Priim and Robert Prüim who owned, controlled
‘anid managed CLC failed to take corrective action in response to
visible permit violations, including erosion, cracking, and ‘lack
of vegetative cover.
Count XVI: Edward Pruim and Robert Pruim who controlled’landf ill
ope~ations, caused leachate to be pumped into cells, in
,violation,of CLC’s permit.
Count XVII: Edward ‘Pruim and Robert P’ruim who owned CLC,
arranged for landfill financial assurance, and were responsible
forC’LC’s”compliance with regulations caused CLC to submit
inadequat~financial assurance for a period from January 22, 1997
until September 1, 1999.
‘
Count XVIII: Edward Pruim and Robert P’ruim who managed waste
disposal at the landfill and,were responsible for CLC’s
compliance with regulations allowed deposit of leachate waste
‘into a new cell without first obtaining Illinois EPA approval.
Count XIX:. Edward Pruim and Robert Pruim’ who arranged for
disposal of waste at the landfill and were responsible fqr
ensuring CLC’s compliance with regulations ‘failed to cause CLC
to provide required updates to CLC’s closure cost estimates from
7
• ‘•
‘December
26, 2004 until July. 26,’ 1996.
The, Complainant has not merely alleged that Edward and
Robert Prdim “caused and allowed,’ violations (all that is
required under
C.J.R.),
it has provided specific factual
allegations related to acts and omissions, and has, where’
app~ropriate, named the dates of these acts and omissions. Even
if the Complaint was reviewed• under the
Tang
standard, with all’
well pleaded facts and inferences t~kenas true
Skokie Valley
Asphalt,’slip’op. at 7
the Complaint sufficiently.alleges
violations of’ the Act to hold Edward Pruim and Robert Pruim
liable.
,
‘
•
, ‘
‘COUNT XI: RESPONDENTS’ ARGUNENT REGARDI~TGRES JUDICATA
AlthOugh
Complainant
does not agree that Res Judicata
app,lies in this matter due to a lack of identity of the parties,
Complainant consents to dismissal of Count XI.
‘CONCLUSION
Complainant ‘has alleged that Respondents Edward Pruim and
‘Robert Pruim have violated numerous provisions of the Act and
Board regulations. There is no ‘implied bar’ to individual
liability
under the Act, simply because a business organization
has been óreated. The Third District Court of Appeals not only
recognized such liability, it found application to individuals’ to
be in conformance with the Act’s purposes. 269 1,11. App. 3d
1018.
‘
‘
8
Respondents’
reliance on the Board’s March 18., 2004 order
in’ PCB 97-193 is inapt. The standards” applicable to ‘amendmen,t
of the complaint in that case do not provide a basis for ~
dismissal in this action. Moreover, in its order, the Board made
clear that its ruling did not prevent the Complainant from filing
the instant case.
,
The complaint properly alleges numerous violations.against
‘the Respondents. The
C.LT.R.
decision established a liberal
pleading standard under the Act. However,”the instant complaint
contains’ numerous specific factual allegations, more than enough
to meet stricter pleading standards.
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
•
~‘
respectfully
requests that this court deny Defendants’ Mo’tion to
Dismiss.
RESPECTFULLY UBMITTED,
RISTOPHER GRANT
Environmental Bureau
•
Assistant Attorney General
188 West Randolph Street,
~
Floor
‘
‘
‘
Chicago, IL 60601
(312) 814-5388
9
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
General of the State. of Illinois,
Complainant,
-vs-
.
)
PCB No. 04-207
(EHforcement)
EDWARD PRUIM., an ‘individual, and
ROBERT PRUIM, an individual,
Respondents.’
.
•
CERTIFICATE OF SERVICE
I,’ CHRISTOPHER GRANT, an attorney,
do certify
that I ‘caused
to ‘be served this’4th day of October, 2004, Complainant’s
Response to Motion to D±srdiss, and Notice of Filing, upon’the
persons listed below by placing same in an envelope bearing
sufficient postage with the United States Postal Service located
at 100 W. Randolph, Chicago.
CHRISTOPHER” GRANT
SERVICE LIST’:
‘
,
‘ ‘
Mr.’ Mark .Larose
•
.
Ms.
Clarissa Grayson
‘
Larose & Bosco,’ Ltd.
200’N. La Salle Street, #2810
Chicago’, IL’ 60601
‘Mr. Bradley P.. Halloran
Hearing Officer
‘
Illinois Pollution Control Board
‘
100 W. Randolph
Chicago, Illinois
60601 via hand delivery
