BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
RCLLERK'SS
OFFFIICCE
D
Complainant,
)
FED 2 4 2006
vs.
STATE OF
ILLINOIS
)
PCB No. 04-207
(Enforcement - Land)
Pollution Control Board
EDWARD PRUIM and ROBERT PRUIM, )
PEOPLE OF THE STATE OF ILLINOIS, )
vs .
)
PCB No. 97-193
(Enforcement - Land)
CO
TY LANDFILL COMPANY, )
(consolidated)
INC.,
)
NOTICE OF FILING
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE
that on FEBRUARY 24, 2006, the undersigned filed an
original and nine copies of
RESPONDENT ROBERT PRUIM'S AND EDWARD PRUIM'S
MOTION FOR LEAVE TO FILE A REPLY IN SUPPORT OF THEIR MOTIONS FOR
SUMMARY JUDGMENT with Ms
. Dorothy Gunn, Clerk of the Illinois Pollution Control
Board, 100 West Randolph Street, Suite 11-500, C ' a
Illinois 60601, a copy of which is
attached and hereby served upon you
.
Respondents.
Complainant,
Respondent
.
TO: Christopher Grant
Environmental Bureau
Assistant Attorney General
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD
.
Attorney No . 37346
200 North LaSalle Street, Suite 2810
Chicago, Illinois 60610
(312) 642-4414
One of the Attorneys for Respond nts
THIS FILING IS SUBMITTED ON RECYCLED PAPER
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVE
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK'S OFFICE
FEB 2 4 2005
Complainant,
vs
.
)
Pollution
STATE OF
Control
ILLINOISBoard
)
PCB No
. 04-207
(Enforcement - Land)
EDWARD PRUIM and ROBERT PRUIM,
)
Respondents .
)
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
vs.
)
PCB No . 97-193
(Enforcement - Land)
COMMUNITY LANDFILL COMPANY, INC ., )
(consolidated)
Respondent .
)
RESPONDENTS EDWARD PRUIM AND ROBERT PRUIM'S JOINT
MOTION FOR
LEAVE TO FILE A REPLY TO COMPLAINANT'S RESPONSETO THEIR
MOTIONS FOR SUMMARY JUDGMENT
Respondents Edward Pruim and Robert Pruim, by and through their attorneys LaRose &
Bosco, Ltd., and pursuant to 35 I1l .Adm. Code 101 .501(e) hereby file their Joint Motion seeking
leave from the Illinois Pollution Control Board to File a Reply to Complainant's Response to their
Motions for Summary Judgment as to all counts of the complaint in PCB No . 04-207 (Enforcement)
(consolidated with PCB No . 97-193 (Enforcement)), and in support thereof, state as follows :
Respondents filed their motions for summary judgment on January 13, 2006 to which
Complainant filed its Response on February 6,
2006. The present motion is timely filed within 14
days after Respondents were served with the Complainant's reply on February 10, 2006, pursuant to
35 Ill.Adm.Code 101 .501(e) .
THIS FILING IS SUBMITTED ON RECYCLED PAPER .
2.
Complainant's Response contains information, statements and admissions that justify
Respondents' seeking leave to file a brief reply so that they may address these issues in order to
avoid material prejudice
. The Respondents' proposed Reply is attached herein as Exhibit A .
WHEREFORE, based on the foregoing, Respondents EDWARD PRUIM and ROBERT
PRUIM respectfully request that the Illinois Pollution Control Board grant theirMotion for Leave to
File their Reply to Complainant's Response to their Motions for Summary Judgment
Respectfully submitted,
LaROSE & BOSCO, LTD .
Mark A . LaRose
Clarissa C . Grayson
LAROSE & BOSCO, LTD.
Attorney No . 37346
200 North LaSalle Street, Suite 2810
Chicago Illinois 60610
(312) 642-4414
fax (312) 642-0434
2
Attorney for Edward Pruim and Robert Pruim
CERTIFICATE OF SERVICE
1, Clarissa C
. Grayson, an attorney, hereby certify that I served copies of the foregoing
RESPONDENT ROBERT PRUIM'S AND EDWARD PRUIM'S MOTION FOR LEAVE
TO FILE A REPLY IN SUPPORT OF THEIR MOTIONS FOR SUMMARY
JUDGMENT
by placing the same in first-class, postage, prepaid envelopes and depositing same
in the U .S
. Mail Box located at 200 North LaSalle Street, Chicago, Illinois, this 24th
day of
February 2006, addressed as follows :
Christopher Grant
Environmental Bureau
Assistant Attorney General
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
Mark A
. LaRose
Clarissa C
. Grayson
LAROSE & BOSCO, LTD
Attorney No. 37346
200 North LaSalle Street
Suite 2810
Chicago, Illinois 60610
(312) 642-4414
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
CaI C
One of the Attorneys for Responden
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
vs.
EDWARD PRUIM and ROBERT PRUIM,
Respondents.
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
vs.
COMMUNITY LANDFILL COMPANY, INC
.,
Respondent.
PCB No
. 04-207
(Enforcement -
Land)
PCB No
. 97-193
(Enforcement -
Land)
(consolidated)
RESPONDENTS EDWARD PRUIM AND ROBERT PRUIM'S REPLY IN SUPPORT OF
THEIR MOTIONS FOR SUMMARY JUDGMENT
Respondents Edward Pruim and Robert Pruim, by and through their attorneys LaRose &
Bosco, Ltd
., and pursuant to 35 I11 .Adm. Code 101
.501(e), hereby reply to Complainant's Response
to their Motions for Summary Judgment as to all counts of the complaint in PCB No
. 04-207
(Enforcement) (consolidated with PCB No
. 97-193 (Enforcement)), and in support thereof, state as
follows: I
I.
INTRODUCTION
Respondents filed their motions for summary judgment on January 13, 2006 to which
'
Although separate Motions for Summary Judgment and Memoranda in Support were filed on behalf of each
respondent in PCB No
. 04-207 (Enforcement), one (1) set of Joint Exhibits A
-
W has been filed and each exhibit will be
referred to herein as "Exh .
-
.11
The Reply is filed jointly on behalf of both respondents
. References to Respondents'
Motions will be made as "Motion, p . " or "Motion, Exh
. " ;
Complainant's Response will be referenced as
"Response, p . "
or Response, Exh . _
THIS FILING IS SUBMITTED ON RECYCLED PAPER
.
Complainant filed a response on February 6, 2006 . Respondents have contemporaneously filed with
this reply a Motion for Leave to File a Reply pursuant to 35 I11 .Adm.Code 101 .501(e) so that they
may address issues raised by Complainant in order to avoid material prejudice .
Based on the Response filed by Complainant, the Illinois Pollution Control Board should
grant summary judgment in favor of Respondents Edward Pruim and Robert Pruim on Counts I, H,
III, VI and XII because the State has admitted in its response that it does not have evidence to
support its allegations of personal involvement with or active participation in the acts resulting in
liability on the part of the Respondents individually . Further, summary judgment should be granted
in favor of Respondents on Counts VII, VIII, IX and X because the sole support for Complainant's
allegations consists of documents signed by Respondents in their corporate capacity . Finally,
summary judgment should be granted in favor of Respondents for Counts IV, V, XVII and XIX
because the acts alleged by Complainant do not rise to the level of active participation and personal
involvement necessary to impose liability on them individually .
II. ARGUMENT
A.
Summary Judgment should be granted in favor of Respondents on Counts
I, II,
III, VI and XII because the State
admits in its Response that it does not have
any evidence to support its allegations of personal involvement with or
active
participation in the acts resulting in liability on the
part of the Respondents
individually
Based on the State's Response, it is clear summary judgment should be granted in favor of
Respondents on Counts I, II, III, VI and XII, which relate to operational, maintenance and improper
disposal violations
. (Response, p . 13). The State admits that they do not have any evidence to
support its allegations of personal involvement with or active participation in the acts resulting in
liability on the part of the Respondents individually, by stating as follows :
•
it is unknown
what ability Pelnarsh had to institute remedial action ;
l
2
in regard to Count I, it is unknown
whether the respondents were aware of ongoing
violations and refused to provide funds to remedy known problems
;
in regard to Counts II
and VI, it is unknown whether sufficient funds were provided
by respondents to prevent and mediate leachate seeps
; and
in regard to Counts III and XII, it is unknown whether respondents arranged to have
tires and landscape waste dumped at the landfill
.
(Response, pp . 13-14).
As the Board is well aware, the purpose of summary judgment is not to try an issue of fact,
but rather to determine if a triable issue of fact exists . Bear v . Power Air, Inc.,
230 I11.App.3d 403,
407, 595 N.E. 2d 77, 80 (1 St Dist. 1992). Although Complainant does not have to try its case, it must
provide a factual basis which would arguably entitle it to judgment
. Bear, 230 Ill.App. 3d at 407,
595 N.E.2d at 80, 81 . In the present matter, the State's mere allegation of personal involvement and
active participation in the acts resulting in liability does not satisfy the standards for summary
judgment ; it has the affirmative duty on the respondents' motion to bring forth all facts and evidence
that would satisfy its burden of proving the existence of a cognizable cause of action .
Golden v.
Marshall Field & Co ., .134 Ill
.App.3d 100, 102, 479 N .E .2d 1211, 1212 (1 St Dist. 1985)
.
The foregoing makes it clear that the State cannot prove its case against Respondent for the
allegations set forth in Counts I, II, III, VI and XII
. The State should know by now whether its
evidence to support its allegations against respondents individually exists, certainly at this point in
the litigation
. If it doesn't know now, when and how does it intend to ascertain this information?
The State filed its complaint against the respondents individually
almost seven years after it filed the
original complaint against the company nearly ten (10) years ago
.
That something is "unknown" is not the same as it being a "question of fact"
. The dictionary
3
definition of "unknown" is
: "not discovered, identified, determined, explored, etc
." (Webster's New
World College Dictionary, 4 th Edition, 1999
.)
A "question of fact" is something that by common
sense contains at least two differing positions that need to be resolved
. Here, Respondents have
quite clearly set forth in their motions for summary judgment that they did not actively participate in
the day to day management of the landfill . (E
. Pruim Motion, pp. 8-16 ; R. Pruim Motion, pp
. 8-16).
Complainant has failed to produce any evidence that Respondents' had personal involvement with or
active participation in the acts resulting in liability for Counts I, II, III, VI and XII, not just active
participation in the management of the corporation
. People v. Tang,
346 I11.App .3d 277, 284, 805
N.E.2d 243, 250 (1
s` Dist. 2004) .
If an issue raised in a complaint is not further supported by evidentiary facts, summary
judgment is appropriate
. Golden v
. Marshall Field & Co., 134 I11.App.3d
100, 102, 479 N
.E. 2d
1211, 1212 (1" Dist
. 1985)
. Respondents point out that on its own, Complainant has, simultaneously
with the filing of its response, moved to voluntarily dismiss Counts XI1I, XIV, XV, XVI and XVIII
of the Complaint on the grounds that it "now believes
that dismissal of [these]
counts . . . would be
appropriate
." The Board should not sanction the State's attempt to avoid summary judgment by
hoping it can transform an admitted lack of evidence into a question of fact when by its own
admission, it does not have any facts to support its position
. The Board should grant summary
judgment in favor of the Respondents on Counts I, II, III, VI and XII
.
B.
Respondents' position in
the affidavits attached to their answers is consistent
with their position in
their motions for summary judgment
Respondents' attached affidavits to their answers to the complaint stating that they were
without sufficient knowledge to form a belief as to the truth or falsity of the allegations
. (See
Affidavits attached to Edward Pruim and Robert Pruim Answers)
. This statement is entirely
4
consistent with their positions in their motions for summary judgment that they have no personal
involvement with or active participation in the allegations contained in the complaint that result in
liability, as is required. People v. Tang, 346 I11.App.3d 277, 284, 805 N .E.2d 243, 250 (1 st Dist.
2004) . Common sense dictates the following question: how could the respondents know about the
allegations in the complaint if they did not have any personal involvement with or active
participation in these allegations? The answer is : they could not and that is why they are entitled to
summary judgment : because they had no personal involvement with or active participation in these
allegations .
Moreover, complainant misstates the relevant law and characterizes respondents' statements
as "admissions"
. (Response, p.4)
. The statements in respondents' affidavits conform with the
Illinois Rules of Civil Procedure which require that "[e]very allegation, except allegations of
damages, not explicitly denied is admitted, unless the party states in his or her pleading that he or she
has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth
of the
statement of want of knowledge
." 735 ILCS 5/2-610(b)
. The Appellate Court "find[s] no logic in an
interpretation under which a defendant who has sworn he has no knowledge of the facts
and is
seeking specific information is deemed to have admitted those very facts because he has not denied
them ." Marion v. Wegrzyn, 93 I11.App.2d 205, 207,236 N .E.2d 328, 330 (1 s` Dist. 1968)
. Based on
the foregoing, there is nothing inconsistent with respondents' position in their answers and in their
motions for summary judgment.
Summary Judgment should be granted on the remaining Counts IV, V, VII,
VII, IX,
X,
XVII and XIX because Complainant's Response fails to set forth
sufficient evidence to support its allegations of personal involvement with or
active participation in the acts resulting in liability
on the part of the
Respondents individually.
Without repeating Respondents' arguments as set forth fully in their motions for summary
5
judgment, Complainant's entire argument in regard to the alleged overheight violations (Counts VII,
VIII, IX and X) are supported by no more than three (3) documents, all of which were signed by
Respondents in their corporate capacity
. The landfill capacity reports were prepared by engineers
and presented to respondents on an annual basis
. These reports are not indicative of personal
knowledge or active participation necessary to impose liability on the individual corporate officers
.
They do not constitute an "egregious example of personal involvement, or of a willful violation" as
the Complainant would have the Board believe
. As a matter of law, these acts simply do not rise to
the level necessary to impose liability on the respondents individually .
People v . Tang, 346
I1LApp
.3d 277, 284, 805 N
.E.2d 243,250 (1st
Dist. 2004). Summary judgment should therefore be
granted in favor of Respondents on Counts VII, VIII, IX and X .
Similarly, the evidence surrounding the Complainant's allegations in regard to alleged
financial assurance violations are insufficient to withstand Respondent's motions for summary
judgment . The acts alleged simply do not rise to the level necessary to impose liability on the
individual corporate officers . Summary judgment should therefore be granted in favor of
Respondents on Counts IV, V, XVII and XIX .
III. CONCLUSION
WHEREFORE, based on the foregoing and for those reasons previously set forth in their
Motions for Summary Judgment, Respondents EDWARD PRUIM and ROBERT PRUIM
respectfully request that the Illinois Pollution Control Board grant their Motion for Summary
Judgment in its entirety on all counts in the 2004 case against them individually, and find that :
(1)
Edward Pruim and Robert Pruim were not involved in the day-to-day operation of the
landfill;
(2)
Edward Pruim and Robert Pruim's acts as corporate officers do not constitute
6
personal involvement or active participation in the acts that might result in liability ; and
(3) the delay by the complainant in bringing this complaint against respondents
personally has resulted in undue prejudice .
Respectfully submitted,
LaROSE & BOSCO, LTD .
Mark A. LaRose
Clarissa C . Grayson
LAROSE & BOSCO, LTD.
Attorney No . 373,46
200 North LaSalle Strut, Suite 2810
Chicago Illinois 60610
(312) 642-4414
fax (312) 642-0434
7
Attorney for Edward Pruim and Robert Pruim
