NOTICE OF FILING
TO:
Ms. Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, 11-500
Chicago, IL 60601
Mr. Christopher Grant
Assistant AttorneyGeneral
Environmental Bureau
188 W. Randolph, 20th Floor
Chicago, IL 60601
PLEASB TAKE NOTICE that on October 18, 2004, we filedwith the Clerk ofthe Illinois
Pollution Control Board an original and nine copies ofRESPONDENTS EDWARD PRUIM AND
ROBERT PRUIMS’
AMENDED
MOTION FORLEAYE TO FILE
A REPLY, a copyofwhich
is attached and herewith served upon you.
Mark A. LaRose
Clarissa C. Grayson
Attorney No. 37346
LaRose & Bosco, Ltd.
200 N. LaSalle Street
Chicago, IL 60601
(312) 642-4414
Fax (312) 642-0434
Attorney forRespondent
• BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
PEOPLE OF THE STATE OF ILLINOIS,
CLERK’S OFFICE
by LISA MADIGAN, Attorney General ofthe
State of Illinois,
Complainant,
V.
EDWARD PRUIM, an individual, and
ROBERT PRUIM, an individual,
Respondents.
OCT 1 8 200k
STATE OF ILLINOIS
PollUtiOn
Control Board
)
)
)
)
)
)
PCB No. 04-207
)
(Enforcement)
)
)
)
)
)
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General ofthe
)
OFFICE
State ofillinois,
)
z
Complainant,
v.
)
•
PCBNo. 04-207
)
EDWARD PRUIM, an individual, and
)
ROBERT PRUIM, an individual,
)
)
Respondents.
).
RESPONDENTS EDWARD PRUIM AND.
ROBERT
PRUIMS’ AMENDED
MOTION
FOR
LEAVE
TO FILE
THE
ATTACHED REPLY
RESPONDENTS, EDWARDPRUIM and ROBERT PRUIM, by and throughtheirattorneys
LAROSE & BOSCO, LTD. hereby move the Board for leave to filethe attached reply (Exhibit A)
and in support thereof, state as follows:
•
•
1.
On September 1-0, 2004, Respondents filed a motion to dismiss the complaint flied
by the People ofthe State ofIllinois in the above matter.
2.
Pursuant to Board rule Section
101.500(d),
Complainant’s response was to he filed
on September 24, 2004. During a telephonic status conference on September 30, 2004, over
Respondents’ objection, HearingOfficerBradleyHallorangranted Complainant’s oral motion to file
its response late, on October 4, 2004.
3.
•
During the telephonic status conference, Hearing Officer Halloran indicated that
there was a possibility that the Board cOuld consider Respondents’ motion to dismiss as early as
Thursday, October 7, 2004. At the direction of Hearing Officer Halloran, Respondents filed a
1
Motion for Leave to File a Reply on October
5,
2004 without actually filing the Reply itself. (See
Exhibit B).
4.
On Wednesday, October 13, 2004, counsel forRespondents contacted Hearing
Officer Halloran to determine when a ruling on the motion for leave to file a reply would be
forthcoming. At that time, Hearing Officer Halloran directed counsel to file its reply for
consideration.
5.
Respondents hereby file the attached reply pursuant to 35 fll.Adm.Code 101.500(e)
which permits the filing ofa reply if material prejudice would result.
WHEREFORE, Respondents EDWARD PRUIM andROBERT PRUIM respectfullyrequest
that the Board grant them leave to file the attachedreply in the above matter.
Respectfully submitted,
~
~
-~_
~
One ofRespondent’s attorneys
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD.
200 North LaS alle Street
Chicago, IL 60601
(312) 642-4414
Fax (312) 642-0434
Attorney No. 37346
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
)
PCB No. 04-207
)
(Enforcement)
EDWARD PRUM, an individual, and
)
ROBERT PRUIM, an individual,
)
Respondents.
)
RESPONDENTS EDWARD
PRUIM AND ROBERT PRUIM’S REPLY TO
COMPLAINANT’S RESPONSE
TO RESPONDENTS’ MOTION TO
DISMISS
COMPLAINT
Respondents, EDWARD PRIJIM and ROBERT PRUIM, (referred to collectively as
“Respondents” or “the Pruims”, or individually as “Edward Pruim” or “Robert Pruim”) by and
throughtheir attoineys, LAROSE & BOSCO, LTD., and in reply to the People ofthe State of
Illinois’ (“People” or“Complainant”) response to Respondents’ Motionto Dismiss, state as follows:
I.
Standard for Filing a Reply Brief
The right to fileaReplybrief in the illinois Pollution ControlBoard
(“Board”)
is not absolute
and will be pennitted by the Board only upon a showing that its purpose is to prevent material
prejudice. 35 Ill.Adm.Code 101.500(e). Inthe presentmatter, material prejudice would result ifthe
Board adopts the proposed legal standards as set forth by Complainant in its Response to
Respondents’ Motion to Dismiss.
THIS FILING
IS SUBMITTED ON RECYCLED PAPER
1
II. Argument
In its Response to Respondents’ Motion to Dismiss, Complainant urges the Board to
determine that simply because the Morris Community Landfill is located in the Third Appellate
District, the Board should not consider anyother cases from outside that district. (People’s Response
Brief, pp. 4 and
5).
Complainant cites absolutely no legal authority for this propositionforthe clear
reason that there is none. Complainant bases its argument on its “belief’ that this is appropriate.
(People’s ResponseBrief, p. 4). Complainant hasprovided no support forits “belief’ that the Board
is bound by a Third Appellate District decision and that it should not consider case law from other
districts.
Complainant is arguing that the Pollution Control Board should only consider a Third
District case becauseofthe locationofthe landfill. What this means practically is that Complainant
is attempting to see to it that the Board consider only People v. C.J.R. Processing. Inc., 269
Ill.App.3d 1013, 647 N.E.2d 1035 (3’~”Dist.
-1995),
and
ignore
the only other two illinois cases to
address the issue ofofficer liability, both ofwhich were decided this year: People v. Agpro. Inc., 345
ill.App.3d 1011, 803 N.E.2d 1007 (21~~~
Dist. 2004) and People v. Tang, 346 ill.App.3d 277, 805
N.E.2d 243 (1St Dist. 2004).
It is important to note that in the event this matter is heard by the Third District Appellate
Court, even that court would not be requiredto follow its almost ten year old decision in People v.
C.J.R. Processing. Inc. and ignore the recent developments in its sister courts. No appellate court
in illinois is “inescapablyboundby its previous decisions.” Schranierv. TigerAthletic Association
ofAurora, 2004 WL 2029938, *2 (Ill.App.2 Dist.). Courts are not required to “blindly follow” its
own precedents.
~,
citing
In re Application of County Treasurer, 292 Ill..App. 3d 31, 315,
685
N.E.2d
656
(1997).
2
The primaryissue in C.J.R. Processing, Inc., at its time a case offirst impressionin Illinois,
was whethera corporate officercould be heldindividuallyliableior a corporation’sviolations ofthe
illinois Environmental Protection Act (“the Act”) when he or she is personally involved or actively
participates in those violations. 269 Ill.App.3d 1013, 1015, 647 N.E.2d 1035, 1037. The court held
that corporate officers could be held liable and while finding that this particular officerwas liable,
concluded only that the complaint “adequately alleged the officer’s personal involvement oractive
participation in the activities which causecLthe violations.” 169 Il1.App.3d at 1018, 647 N.E.2d at
1038. All that C.J.R. really stands foris the proposition that a corporate officercouldbe heldliable.
Id.
Both before and after C.J.R. was decided by the Third District in
1995,
numerous federal
cases addressed the same issue in far greater depth than C.J.R.. As discussed in detail in
Respondents’ Motion to Dismiss, those cases include: U.S. v. Bestfoods, 524 U.S. 62, 72 (1998),
Arstv. Pipefitters, 25 F.3d 417, 421 (7th Cir.) and Browning-Ferris. Inc. v. Ter Maat, 195 F.3d
953,
958 (7t1~Cir. 1999). Without rearguing the merits of those cases, it is important to note that the
Illinois courts, in the First and Second District, recently took up where the Third District left off.
The cases People v. Tang, 346 ill.App. 3d 277,805 N.E.2d 243 (1St Dist. 2004) and People v. Agpro,
345 Ill.App.3d 1011, 803 N.E.2d 1007 (2’~Dist. 2004) both analyzed in detail existing case law,
including People v. C.J.R. Processing. Inc., 269 Ill.App.3d 1013, 647 N.E.2d 1035 (3’~Dist.1995).
The First District in People v. Tang determined that the plaintiff must allege facts establishing that
the corporate officerhadpersonal involvement oractive participatiDnilrtheactsresuhing in liability,
not just that he had personal involvement or active participation in the management of the
corporation. People v. Tang, 346 ill.App. 3d 277,289, 805 N.E.2d243, 253~54(15tDist. 2004). The
Second District in People v. Agpro found “instructive” the decision Browning-Ferris. Inc. v. Ter
3.
Maat, where the SeventhCircuit held that personal liabilitywould attach where ~n~uffterpersoriuliy
operated a landfillrather thanmerely directed the business ofthe corporation. People v. Agpro, Inc.,
345 Ill.App.3d 1011, 1028, 803 N.E.2d 1007, 1019 (2~Dist. 2004); citingBrowning-Ferris, Inc. v.
Ter Maat,
195
F.3d 853,
956
(7th Cir. 1999).
III.
Conclusion
Contrary to what Complainant “believes”,the Board is not bound by a Third District decision
simply becausethat is the district where the landfill is located. Complainant has cited absolutely no
legal authority in support ofits “belief’. The Board can and should consider the First and Second
District decisions People v. Tang, 346 Ill.App. 3d 277, 805 N.E.2d 243 (1St Dist. 2004) and People
v. Agpro. Inc., 345 Ill.App.3d 1011, 1028, 803 N.E.2d 1007, 1019 (2~~dDist.2004).
WHEREFORE, Respondents Edward Pruim and Robert Pruim respectfully request that the
Board grant its Motion for Leave to File a Reply in the present matter, consider the attached reply
and grant Respondents’ Motion to Dismiss.
Respectfully Submitted,
One ofRespondent’s Attorney
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd.
200 North LaSalle Street, Suite 2810
Chicago, IL 60601
(313) 642-4414
AttyNo. 37346
4
•
•
BEFORE THE ILLINOIS POLLUTION
• .
CONTROL BOAR~E
LERK
CE
S OFFICE
1VE
o
PEOPLE OF TEE STATE OF ILLINOIS,
)
OCT
-5
20(J4
by LISA MADIGAN, Attorney General ofthe
)
State ofillinois,
)
STATE OF ILLINOIS
)
‘-OlIution Control Board
Complainant,
)
)
v.
)
PCB No. 04-207
)
EDWARD PRUIM, an individual, and
)
ROBERT PRTJIM, an individual,
)
)
Respondents.
.
• •
)
RESPONDENTS
EDWARD PRUIM
AND ROBERT PRUIMS’ MOTION FOR
LEAVE
TO
FILE AREPLY
RESPONDENTS, EDWARDPRTJIM and ROBERT PRUIM, by and through his attorneys
LAROSE & BOSCO, LTD. hereby move the Board for leave to file a reply and in support thereof,
~tates as follows:
.
•
.
1.
On September 10, 2004, Respondents filed a motion to dismiss the complaint flied
by the People ofthe State ofIllinois in the above matter.
2.
Pursuant to Board rule Section 10
1.500(d),
Complainant’s response was to be filed
on S epteinber 24, 2004. D uring a telephonic status conference on S eptember 30, 2004, over
Respondents’ objection, Hearing Officer BradleyHallorangrantedComplainant’s oral motionto file
its response late, on October 4, 2004.
3.
Duringthe telephonic status conference, Hearing Officer Halloran indicated that
•there was a possibility that the Board could consider Respondents’ motion to dismiss as early as
Thursday, October 7, 2004.
1
4.
While Respondents onlyreceived the Complainant’s responseyesterday, October 4,
2004, theywould like to reserve the right to file a reply prior to the Board’s consideringtheirmotion
to dismiss.
5.
While Respondents have not yet had the opportunity to fully review Complainant’s
response, Respondents are filing the currentmotion forleave to file a reply in order to protect their
right to do so prior to the next Board hearing currently scheduledfor October 7, 2004.
WHEREFORE,Respondents EDWARD PRIJIM andROBERT PRTJIM respectfuilyrequest
that the Board grant them leave to file a reply in the above matter, if they choose to do so, on or
before October i’8, 2004.
Respectfully submitted,
•
-.
•:
•
;•
___________
•
•
•
•
ne ofRespondent’s attorneys •
U
•
•
MarkA. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD.
200 North LaSalle Street
Chicago, IL 60601
(312) 642-4414
Fax (312) 642-0434
Attorney No. 37346
•2
CERTIFICATE
OF
SERVICE
The undersigned, an. attorney, on oath states that she caused to be served a copy of the
foregoing RESPONDENTS EDWARD PRUIM
ANT) ROBERT PRUIM’S MOTION FOR
LEAVE TO
FILE
A REPLY to
the following parties ofrecord, by placing same in the U.S. Mail,
postage prepaid this
5~
day ofOctober, 2004:
Mr. Christopher Grant
EnvironmentalBureau
Assistant Attorney General
188 West Randolph Street,
20th
Floor
Chicago, IL 60601
Mr. BradleyHalloran
Hearing Officer
illinois Pollution Control Board
100W. Randolph Street, Suite 11-500
Chicago,L 60601
•
••.
•
•
•
•
__________
Attorney forRespondent
MarkA. LaRose
Clarissa C. Grayson
Attorney No. 37346
LaRose&Bosco,Ltd,
200 N. LaSalle Street
Suite 2810
Chicago, IL 60601
(312) 642-4414
