Microsoft Word - NOF-COS . Response to Motion for Leave.doc

I. INTRODUCTION
II. RESPONSE TO MOTION FOR LEAVE TO AMEND COMPLAINT, INSTANTER
III. CONCLUSION

THIS FILING SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROBERT F. KASSELA JR. and )

KELLIE R. KASSELA, )

)

Complainant, )

)

v. ) PCB No. 06-001

) (Enforcement – Noise)

TNT LOGISTICS NORTH AMERICA )

INC.,

)

Respondent. )

NOTICE OF FILING

TO: Ms. Dorothy M. Gunn Bradley P. Halloran, Esq.

Clerk of the Board Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500 Suite 11-500

Chicago, Illinois 60601

(VIA ELECTRONIC MAIL)

(VIA FIRST CLASS MAIL)

(PERSONS ON ATTACHED SERVICE LIST)

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of

the Illinois Pollution Control Board Respondent, TNT Logistics North America, Inc.’s

RESPONSE TO COMPLAINANTS’ MOTION FOR LEAVE TO AMEND

COMPLAINT, INSTANTER

, a copy of which is herewith served upon you.

Respectfully submitted,

TNT LOGISTICS NORTH AMERICA INC.,

Respondent,

By: /s/Thomas G. Safley

Dated: December 20, 2005 One of Its Attorneys

Edward W. Dwyer

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2005

CERTIFICATE OF SERVICE

I, Thomas G. Safley, the undersigned, hereby certify that I have served the

attached RESPONSE TO COMPLAINANTS’ MOTION FOR LEAVE TO AMEND

COMPLAINT, INSTANTER upon:

Ms. Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

via electronic mail on December 20, 2005; and upon:

Bradley P. Halloran, Esq.

Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Timothy M. Nolan, Esq.

Mary Ann Sullivan, Esq.

53 West Jackson Boulevard

Suite 1137

Chicago, Illinois 60604-3702

by depositing said documents in the United States Mail, postage prepaid, in Springfield,

Illinois on December 20, 2005.

/s/Thomas G. Safley

Thomas G. Safley

TNTL:002/Fil/Kassela/NOF-COS – Response to Motion for Leave

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ROBERT F. KASSELA JR. and )

KELLIE R. KASSELA, )

)

Complainants, )

)

v. ) PCB No. 06-001

) (Enforcement – Noise)

TNT LOGISTICS NORTH AMERICA )

INC.,

)

Respondent. )

RESPONSE TO COMPLAINANTS’ MOTION

FOR LEAVE TO AMEND COMPLAINT, INSTANTER

NOW COMES Respondent, TNT LOGISTICS NORTH AMERICA INC.

(“TNT”), by its attorneys HODGE DWYER ZEMAN, and for its Response to

Complaints’ Motion for Leave to Amend Complaint, Instanter, states as follows:

I. INTRODUCTION

On July 5, 2005, Complainants filed their Complaint with the Illinois Pollution

Control Board (“Board”). The Complaint, as filed, alleges that TNT’s facility in Monee,

Illinois, has violated the numeric noise standards contained in 35 Ill. Admin. Code §§

901.102, 901.103, 901.104, and 901.106. TNT filed its Answer and affirmative defense

to the Complaint on August 26, 2005. The Complaint was accepted for hearing by the

Board’s Order dated September 1, 2005. On October 19, 2005, counsel for Complainants

filed their appearance with the Board. Complainants moved the Hearing Officer for leave

to amend their Complaint on December 5, 2005.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2005

II. RESPONSE TO MOTION FOR LEAVE TO AMEND COMPLAINT,

INSTANTER

Complainants’ Motion for Leave to Amend Complaint, Instanter (“Motion to

Amend”) states: “Complainants, by and through their attorneys, seek leave to amend

their Complaint by pleading a violation of 35 Ill. Adm. Code 900.102.” Complainants

further assert that “this action will not cause delay or prejudice.”

The Board’s procedural rules provide in relevant part as follows:

d) If a party wishes to file a counter-complaint, cross-complaint, or

third-party complaint, the party must move the Board for leave to

file the pleading. If a party wishes to file an amendment to a

complaint, counter-complaint, cross-complaint, or third-party

complaint that sets forth a new or modified claim against another

person, the party who wishes to file the pleading must move the

Board for leave to file the pleading.

e) The pleading sought to be filed pursuant to subsection (d) of this

Section must:

Set forth a claim that arises out of the occurrence or

occurrences that are the subject of the proceeding; and

2) Meet the requirements of Section 103.204 of this Subpart.

35 Ill. Admin. Code §§ 103.206(d)-(e). (Emphasis added.)

Section 103.204 provides in relevant part that a complaint must set forth:

2) The dates, location, events, nature, extent, duration, and strength of

discharges or emissions and consequences alleged to constitute

violations of the Act and regulations. The complaint must advise

respondents of the extent and nature of the alleged violations to

reasonably allow preparation of a defense; and

A concise statement of the relief that the complainant seeks.

35 Ill. Admin. Code §§ 103.204(c)(2)-(3). (Emphasis added.)

Complainants’ Motion to Amend did not include a copy of the Amended

Complaint which Complainants seek leave to file. Further, Complainants’ Motion

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2005

provides no information regarding the specifics of the proposed Amended Complaint.

Accordingly, neither the Board nor TNT has any information on which to rely to evaluate

whether the proposed Amended Complainant meets the requirements of Sections 103.206

and 103.204 of the Board’s procedural rules.

Further, when deciding a motion for leave to amend a pleading, the Board

considers four factors: 1. whether the amendment cures a defect; 2. whether the other

parties would be prejudiced or sustain surprise; 3. is the filing timely; and 4. whether

pervious opportunities for amendments existed.

People of the State of Illinois v.

Community Landfill Company, Inc.

, PCB 97-193, 2004 Ill. Env. LEXIS 166 at *7-11

(Ill.Pol.Control.Bd. March 18, 2004). As stated above, Complainants have provided no

basis for their Motion to Amend. Without sufficient information, as outlined

supra

neither TNT nor the Board can adequately assess whether the proposed additional claim

will cause prejudice to TNT.

In light of the above, TNT has no information on which it can agree to or oppose

Complainant’s Motion to Amend.

Finally, as noted above, Complainants moved the Hearing Officer, not the Board,

for leave to amend their Complaint. It appears to TNT that the Hearing Officer does not

have authority to rule on Complainants’ motion, but rather, that the Board must rule on

that motion. See 35 Ill. Admin. Code §§ 103.206(d) (“If a party wishes to file an

amendment to a complaint … that sets forth a new or modified claim against another

person, the party … must move the Board for leave …” (emphasis added), 101.502.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2005

III. CONCLUSION

WHEREFORE, the Respondent, TNT LOGISTICS NORTH AMERICA INC.,

respectfully prays that the Illinois Pollution Control Board consider the foregoing when

ruling upon Complainants’ Motion for Leave to Amend Complaint, Instanter and award

such relief as the Illinois Pollution Control Board deems just and proper in the premises.

Respectfully submitted,

TNT LOGISTICS NORTH

AMERICA INC.

Respondent,

By:/s/ Thomas G. Safley

One of Its Attorneys

Dated: December 20, 2005

Edward W. Dwyer

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

TNTL:002/Fil/Kassela/Response to Motion to Amend Complaint

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 20, 2005