RECE~V~D
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
MAR
21
2005
)
STATE OF ILLINOIS
Complainant,
)
PoIIut~onControl board
)
V.
)
PCB 97-2
)
(Enforcement)
JERSEY SANITATION CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
MOTION
FOR
RECONSIDERATION
NOW COMES Respondent, JERSEY SANITATION CORPORATION, through
its
undersigned attorney, and pursuant to this Board’s procedural rule
10 1.520,
35
Ill.
Adm. Code
§
101.520, moves this Board
to reconsider its
Order entered
on February 3,
2005.
In support of this
motion, Respondent states as follows:
1.
This Board entered an order on or about February
3, 2005, purporting to
mandatorily enjoin Respondent to conduct certain activities, as well as to pay a penalty
and Complainant’s attorney fees, and to cease and desist violations.
(Respondent did
not
receive its
copy of the opinion until February
11, 2005,
and therefore this
motion is
timely pursuant to
35
Ill.
Adm. Code
§
101.520).
In so ruling, this
Board misconstrued
and misapplied the
law, overlooked and/or misunderstood many facts, and deprived
Respondent of statutory and constitutional
rights.
2.
For one thing, paragraphs
5
and 6 ofthis
Board’s order (at pages
38
and 39
of the opinion) purport to order Respondent to conduct certain activities; in other words,
these paragraphs purport to entera mandatory injunction requiring Respondent to do
certain things.
However, this
Board lacks the statutory
power and authority to enter any
such order.
The only
statutory authority for this Board’s action,
415
ILCS 5/33(b),
allows this Board to
enter an order to cease and desist violations, to
impose penalties, and
for revocation of permits, but does not provide any
mandatory injunction authority.
In
People v. Agpro. Inc., 2005 Ill. LEXIS 311
(Feb. 3, 2005), the Supreme Court held that
section 42(e) ofthe Environmental Protection Act,
415
ILCS
5/42(e),
did not authorize
any mandatory injunction authority for the circuit courts.
Like this Board’s limited
authority to order a party to “cease and
desist from violations,” section 42(e) permitted
circuit courts only to
award “an injunction to restrain violations.”
And, although
section
42(e) has subsequently been amended to allow circuit courts to issue mandatory
injunctions, no such amendment has ever been made to Section 33(b) with respect to this
Board’s authority.
Therefore,
this Board, like the circuit courts formerly, lacks authority
to order Respondent to take any particular action, including those
expressed.
3.
The Complainant never requested attorney fees in its
opening brief, despite
the
138 page length ofthat tome.
Instead, Complainant requested that relief for the first
time in
its reply brief.
This Board’s ruling upon the fees
relied upon the claim that
Respondent “did not contest the rate or number ofhours that the People request.”
In fact,
though, Respondent was given
no opportunity
to respond, in violation of Respondent’s
statutory rights and constitutional
right to due process of the laws.
Inasmuch as
Complainant failed to provide detail either as to justification for the hourly rate claimed
or the hours allegedly spent, no fees should be awarded.
Moreover,
it is axiomatic that
Complainant’s failure to
have asked for fees in its opening brief waived the issue—issues
not raised in
an opening brief are waived and cannot be raised for the first time in a reply
brief.
~
People v.
Brown,
169 Ill. 2d
94,
108, 660, N.E.2d 964, 970
(1995);
Gunn v.
Sobucki, 352 Ill. App.
3d 785, 789-90, 817
N.E.2d 588,
591
(2d Dist.
2004).
2
4.
This Board’s Opinion and Order is premised upon numerous serious
misunderstandings ofthe facts.
a.
This Board
believes that the Respondent’s
shareholders moved to
their homes
after the landfill was sited (See Opinion,
at 31), but the opposite is
true—no landfill exited
at all until a neighbor started dumpingjunk into an open
ravine more than a y~r
~
the innocents had moved in!
(TR. 328-329).
(Moreover, this dump
was foisted upon these neighbors
in
1975, long before
any
local siting approval was required for new landfills, which
didn’t happen until
1981!).
The record also reveals (without
~
contradiction from Complainant!)
that the open
dump was a dangerous nuisance, with vermin, major conflagrations,
terrible odors—and despite repeated requests, the IEPA
simply refused to
do
anything to improve the situation!
The innocents were forced to protect
themselves, and so purchased the landfill so they would have legal authority to
clean it up.
And they did, accomplishing something in
a few short years
that
IEPA had refused to do for more than a decade!
They rolled
~ii.
of the landfill’s
revenues into machinery, equipment and manpower, and successfully closed the
landfill!
This Board’s suggestion
that the landfill quality diminished or did
anything other than improve is simply, and
completely, unfounded.
~
Respondent’s brief at 1-5, and citations set forth herein.
b.
It is an
undisputed fact that the landfill was granted closure effective
September 30,
1994.
This was an administrative action taken by the IEPA, and
as
a matter of law closure can only be
granted if the landfill
is in compliance with all
permit, regulatory and statutory obligations.
See Brief of Respondent at
5-6,
and
citations therein.
This
Board’s assertion of a different date of closure and
compliance (see Board opinion, at
1, 2,
5
and 7) therefore is unsupported by the
record, and
is erroneous as a matter of law.
c.
The
only competent evidence of the location of open
burning and
composting came from Pam Shourd, who lived right next to the landfill for
decades, and worked at the landfill
daily at the time the inspections
in question
were performed.
See Respondent’s brief, at 8-9, and citations therein.
Virtually
no authority
exists in the record to support this
Board’s supposition
that the IEPA
inspector had any idea where these activities were conducted in relation to
permitted boundaries, and
Pam Shourd’s unrebutted and
uncontroverted
testimony was that at the time composting was not even a regulated activity
(contrary
to this Board’s conclusion that the activity was illegal
no matter where
conducted).
See Board
opinion, at 16,
24, 28-30.
Moreover, this Board’s ruling
relied upon a ground never argued by Complainant; the ground therefore was
waived, and this
Board’s ruling deprived Respondent of its right, statutory and
constitutional, to address the charges leveled against it.
d.
This Board’s opinion with respect to alleged groundwater violations
found Respondent guilty of conduct that had never been charged by Complainant,
and confused the Complainant’s case against Respondent.
The totality of
Complainant’s case on this issue was that the permit stated certain groundwater
analysis obligations which
Respondent failed to
comply with,
and the IEPA
claimed certain activities were necessary to determine whether the landfill was
causing alleged groundwater exceedances. In the same breath, Complainant
4
questioned the reliability of information pertaining to the groundwater.
Respondent’s experts, with far greater experience and
expertise than
Complainant’s (Ken Liss, after all, .~ii
the IEPA’s groundwater program!)
testified without contradiction that no trends were developed, that no evidence
existed to
suggest the landfill was causing any exceedances,
and that the
groundwater activities at the site were in full conformance with the permit,
applicable regulations,
and the statute.
The IEPA’s insistence to
the contrary, in
fact, was nothing less than an
attempt to reimpose permit conditions that both this
Board and the appellate court had
previously ruled to be
improper.
See
Respondent’s brief, at 10-15, and authorities cited therein.
Somehow this Board,
however,
changed the issue to one of violation of groundwater standards,
concluded
without support (in fact, contrary to
the IEPA’s own conclusion that
inadequate evidence existed) that the landfill was the cause ofthe unproven
contamination, and adjudged Respondent guilty.
These leaps simply are
unsupported
by the record,
and have deprived Respondent of its statutory rights
and constitutional
right to
due process ofthe laws.
e.
This Board reached the confounding conclusion that Respondent
reaped some economic benefit because it lacked the financial resources to
both
close the landfill
(which it successfully accomplished), and to fully fund the
closure-post closure account.
See Board opinion at 15-16, 32, 34-36; compare
Respondent’s brief at 15-17, and authorities cited therein.
At no time, however,
either through logic or facts, has Complainant
shown in what way anyone could
be economically benefited who lacked financial resources in the first place.
The
5
uncontradicted evidence shows that Respondent used virtually
~fl
of its
resources—every dollar of revenue from the disposal of trash at the landfill—to
improve the environmental condition of the landfill, and ultimately to achieve its
full, unconditional closure.
The “economic benefit” penalty is suggested by
Complainant,
and imposed
by this Board, based upon the mere fact that there
were insufficient economic resources to
do both things.
Respondent posits that
this Board’s economic benefit decision is unsupported by the facts and/or is
premised upon a gross misunderstanding of the law.
The case would be
greatly
different if there were
~
evidence that profits had been spent on non-
environmental activities, but virtually
no such facts exist or are even suggested by
this
record, and
in the absence of such facts, as a matter of law there can be no
economic benefit.
f.
Finally, no evidence supports this Board’s conclusion that there is any
reason to deter Respondent from anything.
The unrebutted, uncontradicted facts
reveal that Respondent’s
stock ownership changed in the late
1980s for the
express reason that the landfill
was being run in a way that was literally
an
immediate threat to the health and
safety of its neighbors.
After the ownership
change every dime put into its operations was used by Respondent to improve its
environmental condition.
The result is a safely closed landfill that has generated
virtually
no complaints or objections from any neighbor for over 15 years.
The
landfill was closed without any
cost to the State of Illinois.
The operating
violations, conceded in these proceedings
by Respondent, ended as soon as the
landfill closed; they are ancient history at this time, and
the only testimony on
the
6
issue reveals that Respondent is no longer involved at all
in the landfill business.
Accordingly there
is nothing to deter.
As for matters relating to financial ability,
again the only evidence presented to this Board was that at least upon the change
in ownership (which notably corresponds with the enforcement activity
in this
case), all available financial resources were devoted to improving the landfill’s
environmental condition.
That is
behavior this Board should
encourage, not
deter!
5.
It appears from this Board’s Opinion that the voluminous (175 pages total!)
briefs submitted
by Complainant completely dominated this Board’s consideration, and
confused and obfuscated the simple, unrebutted facts ofthis case.
Already
this Board
and
the appellate court have rebuffed, several times, efforts
by Complainant (including both
the Attorney General’s Office
and the IEPA) to illegally impose
upon Respondent
obligations that are impermissible by statute, regulation or law.
This enforcement action,
pursuing a 10 acre landfill for
15 year old
operating violations and fabricated
groundwater troubles, is another instance of the animus of this administrative Agency.
No one—not the environment, not the People, certainly not the landfill’s neighbors—is
benefiting in any
way from this ridiculous pursuit.
The only explanation, in
fact, is the
IEPA’s institutional embarrassment in
so thoroughly falling short of its own
responsibilities that neighbors were forced to purchase the nuisance, fix
it, and
close it in
accordance with
all applicable
laws and regulations.
The thanks ofa grateful
sovereign?
This enforcement action.
Respondent urges this Board to re-evaluate the record
and the
briefs, and to
reconsider its ruling in this case.
~
Southern Illinois Asphalt Co.
v.
Pollution Control Board, 60 Ill. 2d 204, 208, 362 N.E.2d 406, 408 (1975) (General
7
Assembly did not intend Pollution Control Board to impose monetary fine in
every case
ofviolation of the statute or regulations); see
~
Metropolitan
Sanitary District
v.
Pollution Control Board, 62 Ill.2d 38, 338 N.E.2d 392(1975); Archer Daniels Midland v.
Pollution Control Board,
149 Ill. App.
3d 301, 500 N.E.2d 580 (4th Dist.
1986); Wells
Manufacturing Co.
v. Pollution
Control Board, 48 Ill. App. 3d 337,
363
N.E.2d 26 (1st
Dist.
1977), aff’d,
73
Ill.
2d 226,
383
N.E.2d 148 (1978).
WHEREFORE Respondent,
,JERSEY SANITATION CORPORATION, requests
that this Board reconsider its opinion entered February
3, 2005, re-evaluate
the record
and the briefs previously submitted in this
matter, and enter the relief sought
by
Respondent in its
Respondent’s Closing Brief.
Respectfully submitted,
JERSEY SANITATION CORPORATION,
Respondent,
By its attorneys
HEDINGER
By:
HEDINGER LAW OFFICE
2601
South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This document prepared on recycled paper
OFFICE
Stephen
Hedinger
V.
)
MAR
21
20Ci~~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RE
CE
~
V ~
JERSEY SANITATION CORPORATION,
CLERK’S OFFr
an Illinois corporation,
)
)
Petitioner,
)
STATE OF
ILLIN
)
PQ~T&~Ø~Q1
L.~
)
(Enforcement)
ILLINOIS ENVIRONMENTAL PROTECflON
)
AGENCY,
)
)
Respondent.
)
NOTICE
OF FILING AND PROOF OF SERVICE
The
undersigned
certifies
that
an
original
and
nine
copies
of
the
foregoing
Respondent’s Motion
for Reconsideration were
served
upon
the
Clerk of the
Illinois
Pollution
Control Board,
and one
copy to each of the following parties of record in this
cause by enclosing same in an envelope addressed to:
Dorothy Gunn, Clerk
Jane McBride
Illinois Pollution
Control Board
Office ofAttorney General
James R. Thompson Center
500 South Second Street
100 W.
Randolph St., Suite 11-500
Springfield, IL 62706
Chicago, IL
60601
Carol Sudman
Hearing Officer
Illinois Pollution Control
Board
1021
N. Grand Avenue East
Springfield, IL 62794
with
postage fully prepaid, and
by depositing
said
envelope
in
a U.S.
Post Office Mail
Box in Springfield, Illinois before 5:30 p.m. on
March
/~,
2005.
Fledinger Law
Office
2601
South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This document prepared on recycled paper
