RE.CE~VEDCLERK’S
OFFICE
OCT 1 92004
STATE OF ILLINOIS
Pollution Control Board
OFFICE OF THE A~ITORNEYGENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENE RAL
The Honorable Dorothy Gunn
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph
Chicago, Illinois 60601
Re:
People v. Jersey Sanitation Corporation
PCB No. 97-2
Dear Clerk Gunn:
Enclosed forfiling please find the original and ten copies of a NOTICE OF FILING, MOTION
FOR LEAVE TO REPLY TO RESPONDENT’S RESPONSE TO MOTION FOR SANCTIONS and
COMPLAINANT’S REPLY TO RESPONDENT’S RESPONSE TO MOTION FOR SANCTIONS in
regard to the above-captioned matter. Please file the original and return a file-stamped copy of the
document to our office in the enclosed, self-addressed, stamped envelope.
Thank you for your cooperation and consideration.
Very truly yours,
~
Jane E. McBride
•
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
JEM/pp
Enclosures
500
South Second Street,
SpringOeld, Ilhnots 62706
•
(217) 782-1090
•
T’FY: (217) 785-2771
•
Fax: (217) 782-7046
100 West Randolph Street, Chicago. Illinois 60601
•
(312) 814—3000
• CIV: (312)
814—3374
•
Fax: (312) $14—3806
1001 Fast \l:dn. Carhondale, Illinois 62901
•
(61$) 529—6400
•
CIV: (hIS) 529—6403
•
Fax: (61$) 529—6416
RECE WED
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BOARDCLERKS
OFFICE
OCT 192004
PEOPLE OF THE STATE OF ILLINOIS,
)
)
STATE
OF
ILLINOIS
Complainant,
)
Pollution Control Board
v.
)
PCB NO. 97-2
)
(Enforcement)
JERSEY SANITATION CORPORATION,
)
an
Illinois corporation,
)
-
Respondent.
NOTICE OF FILING
To:
Stephen F. Hedinger
Attorney at Law
2601 South Fifth Steet
Springfield, IL 62703
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, MOTION FOR LEAVE TO REPLY TO RESPONDENT’S
RESPONSE TO MOTION FOR SANCTIONS and COMPLAINANT’S REPLYTO RESPONDENT’S
RESPONSE TO MOTION FOR SANCTIONS, copies of which are attached hereto and herewith
served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY: ~
_1,~Y_~_~_
C
,.—~JANEE. McBRIDE
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: October 15, 2004
CERTIFICATE OF SERVICE
I hereby certify that I did on October 15, 2004, send by First Class Mail, with postage thereon
fully prepaid, by depositing in a United States Post Office Box a true and correct copy of the
following instruments entitled NOTICE OF FILING, MOTION FOR LEAVE TO REPLY TO
RESPONDENT’S RESPONSE TO MOTION FOR SANCTIONS and COMPLAINANT’S REPLYTO
RESPONDENT’S RESPONSE TO MOTION FOR SANCTIONS
To:
Mr. Stephen Hedinger
Hedinger Law Office
2601 South Fifth Street
Springfield, Illinois 62703
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the same
foregoing instrument(s):
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid
To:
Carol Sudman
Hearing Officer
Pollution Control Board
1021 N. Grand Avenue East
Springfield, Illinois 62794
d~~
,M1~E. McBride
Assistant Attorney General
This filing is submitted on recycled paper.
RECE WED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
OCT 192004
STATE OF ILLINOIS
Complainant,
)
Pollution Control
Board
vs.
)
PCB No. 97-2
JERSEY SANITATION CORPORATION,
)
an Illinois corporation,
)
Respondent.
MOTION FOR LEAVE TO REPLY TO RESPONDENT’S RESPONSE TO MOTION FOR
SANCTIONS
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, and respectfully
requests leave to reply to Respondent’s response to motion for sanctions, on the following
grounds.
1.
In its response, for the first time, Respondent blatantly claims, in paragraph 12,
that “Complainant is directly responsible for a large share” of Respondent’s delay. The basis
for this statement is set forth in the paragraphs preceding paragraph 12. Much of what is
included in the response, is presented in a manner first articulated in this response,
Complainant should be allowed to reply to Respondent’s assertions as articulated in the
response.
2.
It is Complainant’s position that a number of the assertions, even factual
assertions, set forth in Respondent’s response are incorrect. Complainant should be allowed
an opportunity to provide clarifications it deems merited.
3.
Complainant believes it has been significantly prejudiced by Respondent’s delay,
not only in the instance of its failure to file its brief in accordance with Hearing Officer orders,
but by the pattern and practice of delay undertaken by the Respondent throughout this
proceeding. Complainant, thus, should be allowed an opportunity to address Respondent’s
assertions as articulated in the response.
4.
In the interest of economy and efficiency, in conjunction with this motion for
leave to reply, Complainant submits its reply.
WHEREFORE, for the foregoing reasons, Complainant respectfully requests leave to
reply to Respondent’s response to Complainant’s motion for sanctions.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex reL LISA MAD lOAN, Attorney General
of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement Division
BY: ______________________
.“~
JANE E. MCBRIDE
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
RECE
WED
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT 192004
PEOPLE OF THE STATE OF ILLINOIS,
))
STATE OF
ILLINOIS
Complainant,
)
Pollution Control
~oar~
vs.
)
PCB No. 97-2
JERSEY SANITATION CORPORATION,
)
an Illinois corporation,
)
Respondent.
COMPLAINANT’S REPLY TO RESPONDENT’S RESPONSE TO MOTION FOR SANCTIONS
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, and hereby
submits its reply to Respondent’s response to Complainant’s Motion for Sanctions.
Complainant states as follows:
1.
On October 8, 2004, Complainant received service, by US mail, of Respondent’s
response to Complainant’s motion for sanctions. Counsel for Complainant was out of the
office due to a long-scheduled obligation out of town, from October 1, 2004 until October 14,
2004.
2.
In Paragraph 2 of Respondent’s response to Complainant’s motion for sanctions.
Respondent states: Just four days earlier, on September 19, 2003 (three months after the
hearing officer had established the schedule), Complainant tendered to Respondent an
“amended” opinion witness disclosure that for the first time raised an issue concerning
-
groundwater at the facility”. This statement is completely incorrect.
3.
Complainant’s disclosures of witnesses have been entered in the record as
Complainant’s Exhibits 17 and 19. Further, the groundwater issues that were the subject of
Complainant’s Exhibit 16, which is the exhibit provided to Respondent on or about September
19, 2003, are set forth in Count I of the Second Amended Complaint, filed January 3, 2001 and
subsequent disclosures on December 6, 2000 and August 13, 2003. Count I of the first
amended and original complaint also concerned the groundwater violations alleged in this
matter.
4.
Disclosures included in Complainant’s Exhibit 17, which was submitted to
Respondent on December 6, 2000, included, on page 3 of the disclosure, the following
statement associated with the witness disclosure of Karen Nelson: “The subject matter will be in
regard to the findings in the IEPA “Groundwater Sampling Inspection/Compliance Review
Report” dated October 24, 1994 conducted at Jersey Sanitation Corporation on May 17, 18,
and 19, 1994 and subsequent groundwater record reviews of IEPA field operations section files
that serve to update the violations outlined in the above-mentioned report.” The 1994 report
findings included the upgradient well issue as well as alleged violations, including the
exceedance of groundwater quality standards.
5.,
Complainant’s supplemental disclosure was filed on August 13, 2003. No pre-
trial discovery schedule was set in this matter. However, Respondent had ample time to
depose Complainant’s witnesses. Respondent never objected to the timing of the disclosures,
or requested or scheduled a single deposition, prior to the date of hearing.
6.
In paragraphs 2, 4 and 11 of Respondent’s response to Complainant’s motion for
sanctions, Respondent referenced information contained in the September 19, 2003 exhibit
transmission to Respondent as a submission of a “new issue”. Complainant addressed
Respondent’s characterization of this information as a “new issue”, in paragraph 9 of
Complainant’s Objection to Respondent’s motion for extension of time to file a response to
motion for sanctions, filed in this matter on September 27, 2004, entered September 30, 2004.
Complainant hereby incorporates paragraph 9 of its objection, herein, in partial reply.
7.
In paragraph 4 of its response, Respondent indicates that the depositions
Complainant requested and conducted of Respondent’s groundwater opinion witnesses were
the only depositions Complainant conducted in the case. In reply, as is obvious from the many
2
exhibits entered in this matter, and the extent to which groundwater issues are addressed in
Complainant’s brief, the groundwater issues are the remaining outstanding issues completely
unresolved in this case that were the subject of the greatest controversy in this matter. Thus, it
makes perfect sense for the Complainant to conduct depositions of Respondent’s groundwater
witnesses only. Respondent failed to identify or disclose any groundwater witnesses prior the
date of hearing.
8.
Respondent’s sole disclosure of witnesses prior to the September 23, 2003
hearing date was a disclosure that exists in the record as Complainant’s Exhibit 18. This
disclosure was made on September 11, 2003, 12 days before the hearing. The only technical
witnesses disclosed, other than the IEPA inspector, were Tracey Kelsy and Andy Rathsack.
Neither disclosure indicates they would testify relevant to groundwater issues. Ms. Kelsey was
to testify concerning “all matters relating to survey issues.” Mr. Rathsack was to testify to “the
history and background of the Jersey Sanitation Landfill, the permitting history and background
of the Jersey Sanitation Landfill, matters pertaining to surveys and boundary control, and the
history and permitting requirements and industry standards during the relevant time frame of
closure/post-closure of this landfill.”
9.
It is obvious from the record in this case that the groundwater violations and
issues were by no means “new issues” by the date of hearing in this matter. Nonetheless,
somehow, for whatever reason, Respondent considered itself surprised, at the time of hearing,
by the groundwater issues in this matter. This is despite the fact these issues and violations
have, since the initiation of this matter, been set forth and alleged in the very first count of the
original and subsequent complaints. They were the subject matter of disclosures submitted in
December 2000. They were the subject matter of many of the numerous documents produced
for and delivered to Respondent on October 24, 2002. (See Exhibit A, attached).
3
10.
Respondent’s characterization that the groundwater issues were “new issues” at
the time of hearing is simply a ruse. It is’a ruse to detract attention from the fact that
-
Respondent failed to conduct discovery depositions in this matter and failed to effectively focus
on the key issues remaining in this case prior to hearing. At the end of the day, it is not
inconceivable that the Respondent might be surprised at hearing given that it faHed to conduct
depositions and perhaps failed to properly review other documents produced and delivered to
its door. But, such surprise is not the fault of Complainant. All responsibility for any surprise
Respondent might have experienced rests solely with the Respondent.
11.
Throughout this proceeding, it has been obvious that Respondent is minimizing
the expenditure of resources on this matter. Such was obvious from the manner in which the
Respondent’s experts’ groundwater testimony was pieced together, in which they relied only on
factual information available from the neighboring landfill given that no investigation had ever
been done at the subject facility. As set forth in Complainant’s brief, this practice is reflected in
the manner in which Respondent handled the two landfills. It expended money and resources
on the neighboring landfill but not the subject landfill. This practice continues to this day, in that
the Respondent is trying to shift the blame for its own failure to expend time and resources
defending this case, to the Complainant.
12.
In paragraphs 7, 9 and 10 of its response, it indicates its contention that
Complainant’s brief was not actually “filed” until September 29, 2004. Complainant addresses
this assertion in paragraph 10 of its objection to Respondent’s motion for extension of time to
respond to the motion for sanctions, and hereby incorporates paragraph 10 of its objection,
herein, in partial reply to Respondent’s contention of a September 29, 2004 filing date. Further,
Complainant states that in formal discussions concerning the briefing schedule with the Hearing
Officer, Respondent did not contend its brief was not due, so as to raise the issue for a ruling.
4
Respondent had ample time to file a written objection or request a ruling prior to the date
Complainant filed its motion for sanctions, but never did so.
13.
In paragraph 10 of Respondent’s response, Respondent makes vague reference
to the fact the transcript from the first hearing dates was available, according to the
Respondent’s count, 6 months as of the date of the Complainant’s filing of its brief.
Respondent makes the statement that “ninety percent of this case’s evidence was submitted”
during the first hearing dates. Contrary to the inferences contained within Respondent’s
argument, Complainant contends that the groundwater issues in this matter hinged on
testimony elicited on the January 13, 2004 hearing date. Much of Complainant’s brief is
dedicated to groundwater issues.
14.
In paragraph 12 of its response, Respondent claims that “Complainant is directly
responsible for a large share” of Respondent’s delay. As is obvious from the foregoing 14
paragraphs and Complainant’s objection to Respondent’s request for an extension of time to
respond to the motion for sanctions, Complainant is not responsible for one hour, one minute,
not even one second of Respondent’s delay.
5
WHEREFORE, on the foregoing grounds, Complainant respectfully requests that the
Board grant Complainant’s Motion for Sanctions, deny Respondent’s request for additional time
to file its response brief, and order the record in this matter closed.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
exreL LISA MADIGAN, Attorney Genera!
of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement Division
BY:
~ 7~~_—~
,
—~
JANE E. MCBRIDE
~
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
6
OI~ncEOF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Jim Ryan
ATTORNEY GENERAL
October 24, 2002
Mr. Steve Hedinger, Esq.
Law Offices ofStephen Hedinger
1225 South Sixth Street
Springfield, IL 62703
Re:
People v. Jersey Sanitation Corporation
PCB 97-2
Dear Steve:
With this letter I am transmitting documents responsive to your Second Request for
Production ofDocuments in the above-referenced matter.
Our original response to this request
was
filed April
30, 2001.
At that time I informed
you the documents were available for inspection at the Office ofthe Attorney General. In that
you have not made arrangements to come to the office to review the documents, I am delivering
copies of the discoverable documents to your office. I.have enclosed a privilege log to
accompany the production.
The documents are organized as follows:
1..
A set of: documents consisting of discoverable documents from the Illinois EPA’s
field file, records unit file (alk/a division file), compliance section file and permits
file in chronological order.
2.
A set ofdocuments representing the discoverable documents from the Bureau of
Land’s Groundwater file for Jersey Sanitation. Included with the production are
microfiche slides. These are copies that you may retain. (This does not include
the documents provide by Jersey via cover letter dated October
23,
2002.)
3.
A set of documents consisting ofdiscovered documents from the Attorney
General’s Office (“AGO”) correspondence file, in chronological order.
Exhibit A
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Sp~tg)c~l.llli~o 127(16 (217) 7H(169()
.
I IV 217
T65-27T1
.
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IH
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.
H-)-1S’$
~
1
~
~
~
...
:
—
\‘
-~:~—.~-_‘:
Mr. Steve Hedinger,Esq.
October 24, 2002
Page 2
4:
A set ofdocuments from the Attorney General’s Office pleadings file: one group
in chronological order for the years 1992-1999, one group in chronological order
for the year 2000, one group in chronological order for the year 2001, and one
group in chronological order for the year 2002. For this set, I did not copy and
include hearing officer and Board orders dated from mid-2001 to the present.
5.
A set ofdocuments from the illinois EPA files and AGO files that consists of
corporate, financial and financial assurance information regarding Jersey
Sanitation Corporation.
6.
A set ofdocuments from the EPA’s records unit and compliance sectioti that
consists ofcitizen complaints. Names and addresses included on the citizen
complaint forms contained within this file and also from the other agency files
have been redacted.
7.
A set ofdocuments that consist of diagrams, maps, and drawings from the Illinois
EPA files and the AGO files.
8.
A set ofdocuments that consists ofnewspaper articles from the EPA files and
AGO files.
9.
Documents contained with an AGO file called “Permits”.
1.0.
Documents from an AGO file called “Recent Groundwater Documentation”.
ii.
Groundwater reports that exist in the fEPAfield file and in the AGO file.
I have not included any documents contained within the AGO Jersey Sanitation
enforcement files that are from the permit appeal matter. In that you are handling the appeal, I
trust you have a copy of all the appeal documei~ts.
In that this document production was conducted in February and March of 2001, I have
asked the Illinois EPA to supplement the production. The production I am transmitting with this
letter is current to today’s date for the Attorney General’s Office files. Some Illinois EPA
documents that have come into being since February and March 2001. are contained within the
Mr. Steve Hedinger, Esq.
October 24, 2002
Page3
-
AGO files and thus are being produced from the AGO files. I provided an affidavit for the
production that is being transmitted with this letter, at the time ofthe April
30,
2001 filing.
Sincerely,
~
Jahe E. McBride
Assistant Attorney General
(217)
782-9033
cc:
Greg Richardson, Esq., EPA
David Jansen, EPA, Springfield Regional Office
