ILLINOIS POLLUTION CONTROL BOARD
April 5, 2001
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
COMMUNITY LANDFILL COMPANY,
INC., an Illinois corporation,
Respondent.
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PCB 97-193
(Enforcement - Land)
ORDER OF THE BOARD (by N.J. Melas):
On May 1, 1997, the Attorney General’s Office, on behalf of the people of the State of
Illinois (complainant) initiated this action by filing a complaint. Complainant alleged that
Community Landfill Company Inc. (CLC) violated various sections of the Environmental
Protection Act (Act) and the Board’s waste disposal regulations with respect to managing waste
and controlling pollution at CLC’s sanitary landfill (landfill).
This matter comes before the Board on a motion for partial summary judgment on
counts 5 and 12 that complainant filed on July 31, 2000 (Comp. Mot.).
1
In count 5,
complainant alleges that CLC violated the Act and the Board’s regulations by failing to timely
file a significant modification (sigmod) permit application. In count 12, complainant alleges
that CLC violated that Act and the regulations by continuing to accept waste at a time when it
was not permitted to do so.
For the reasons outlined below, the Board grants complainant’s motion for summary
judgment on count 5, but orders that penalty issues must be discussed at hearing. The Board
denies both parties’ motions for summary judgment with respect to count 12 as there is an
outstanding issue of material fact. The Board orders that all issues related to count 12 be
discussed at hearing.
1
On October 30, 2000, CLC filed a response to complainant’s motion for partial summary
judgment and filed its own cross-motion for partial summary judgment with respect to count 12
(CLC Mot.). On November 14, 2000, complainant filed its response to CLC’s cross-motion
for partial summary judgment (Resp.). On November 20, 2000, CLC filed a motion for leave
to file a reply memorandum instanter and a reply memorandum in support of its cross-motion
for partial summary judgment on count 12 (Reply). On November 21, 2000, the hearing
officer granted CLC’s motion for leave to file and gave complainant until
November 28, 2000 to file a reply. On November 27, 2000, the AG filed a surreply to CLC’s
cross-motion for partial summary judgment (surreply).
2
BACKGROUND
The landfill at issue herein is located at 1501 Ashley Road in Morris, Grundy County.
The City of Morris owns the landfill and CLC operates the landfill. CLC Mot. at 3.
According to the second amended complaint (sec. am. comp.) the landfill is divided into two
parcels – A and B. Parcel A is approximately 55 acres and, as of November 24, 1999, it was
still accepting waste. Parcel B is approximately 64 acres. Sec. am. comp. at 2.
Procedural History
In its initial six-count complaint filed on May 1, 1997, complainant alleged that CLC
violated the Act and the Board’s waste disposal regulations by allowing uncovered refuse,
leachate seeps, landscape waste at the landfill. Complainant also alleged that CLC provided
inadequate financial assurance for the landfill. On April 3, 1998, complainant filed an
amended complaint adding counts 7 through 10 which relate to CLC depositing 475,000 cubic
yards of excess waste in Parcel B at elevations above the permitted landfill height of 580 feet.
2
On November 24, 1999, complainant filed a second amended complaint (sec. am. comp.)
adding counts 11 through 22. Complainant alleged further violations of the Act and the
Board’s regulations involving improper handling of asbestos, improper disposal of waste tires,
and violations of permit provisions relating to landfill operation, landfill maintenance, and
financial assurance deficiencies.
STANDARD
Summary judgment is appropriate when the pleadings and depositions, together with
any affidavits and other items in the record, show that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary
judgment, the Board “must consider the pleadings, depositions, and affidavits strictly against
the movant and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment “is a drastic means of disposing of litigation,” and therefore it
should be granted only when the movant’s right to the relief, “is clear and free from doubt.”
Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489
N.E.2d 867, 871 (1986). However, a party opposing a motion for summary judgment may not
rest on its pleadings, but must “present a factual basis which would arguably entitle [it] to a
judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist.
1994).
2
The Board notes that, in the permit appeal that the Board is deciding today, neither party
argues the existence of the overfill in Parcel B. See Community Landfill Company and City of
Morris v. IEPA (April 5, 2001), PCB 01-48, 01-49. The overfill in Parcel B is the basis for
counts 7 through 10 in the second amended complaint. The Board is intrigued that
complainant did not allege that counts 7 through 10 are ripe for summary judgment.
3
STATUTORY / REGULATORY FRAMEWORK
The regulations for non-hazardous waste landfills (such as the landfill at issue herein)
which accept waste after 1992 are set forth at 35 Ill. Adm. Code 814 Subpart C (Subpart C),
35 Ill. Adm. Code 814 Subpart D (Subpart D), and 35 Ill. Adm. Code 814 Subpart E (Subpart
E). Landfills that meet the requirements of Subpart C may stay open for an indefinite period
of time. Landfills that cannot meet the requirements of Subpart C are subject to the
requirements of Subpart D or Subpart E.
Subpart D requires that owners and operators of non-hazardous waste landfills initiate
closure by September 18, 1997, if they can not demonstrate compliance with the requirements
of Subpart C. Subpart E requires that owners and operators of these landfills initiate closure
by September 18, 1992, if they can not demonstrate compliance with Subpart C or Subpart D.
The Board’s regulations at 35 Ill. Adm. Code 814.104 require that an owner or
operator of a landfill (except for certain landfills that closed in 1996) subject to Section 21(d)
of the Act (415 ILCS 5/21(d) (1998)) file a sigmod application by September 18, 1994, or by
an earlier deadline if the Illinois Environmental Protection Agency (Agency) specified one.
35 Ill. Adm. Code 814.105(b) provides temporary relief from the closure requirement
at Subpart D if an owner or operator of a landfill timely files a sigmod application. Those
landfills timely filing a sigmod application were allowed to operate under their existing permits
issued under 35 Ill. Adm. Code 807.
Section 21(d) of the Act addresses operators of waste disposal operations. 415 ILCS
5/21(d) (1998). Section 21(d)(1) of the Act states that no person shall conduct any waste
disposal operation without a permit from the Agency or in violation of the conditions in an
Agency permit. 415 ILCS 5/21(d)(1) (1998). Section 21(d)(2) of the Act states that no person
shall conduct any waste-storage operation “in violation of any regulations or standards adopted
by the Board under this Act.” 415 ILCS 5/21(d)(2) (1998).
UNCONTESTED FACTS
In accordance with 35 Ill. Adm. Code 814.104, the Agency demanded that CLC submit
a sigmod application by June 15, 1993, for Parcel B, but CLC did not submit one by that date.
Comp. Mot. at 3; CLC Mot. at 2; Community Landfill Company and City of Morris v. IEPA
(April 5, 2001), PCB 01-48, 01-49, slip op. at 4.
On April 26, 1995, CLC filed a variance petition with the Board requesting that the
Board allow it to file a sigmod application after the June 15, 1993 Agency-imposed deadline.
Comp. Mot. at 3. The Board denied the variance. Community Landfill Co. v. IEPA
(September 21, 1995), PCB 95-137.
CLC sought review of the variance denial. The Third District Illinois Appellate Court
“set aside and remanded” the denial on June 17, 1996. The Appellate Court would not award
4
CLC a retroactive variance but instead ordered the Board to grant CLC a prospective variance.
Community Landfill Co. v. IPCB and IEPA, No.3-96-0182 (1996), (unpublished order under
Supreme Court Rule 23). The Board granted the prospective variance to CLC on June 20,
1996, by allowing the sigmod applications to be filed by August 5, 1996. Community Landfill
Co. v. IEPA (June 20, 1996), PCB 95-137. Pursuant to the prospective variance, CLC filed
its application for a sigmod permit on August 5, 1996. Comp. Mot. at 3; CLC Mot. at 3.
On October 11, 1996, the Agency issued a permit which authorized CLC to operate the
vertical expansion of Parcel A. In the letter filed with the permit, the Agency wrote “this
permit does not constitute a partial approval of the significant modification required by 35 Ill.
Adm. Code 814.104.” CLC Mot. at 3, exh. C.
In an April 24, 1997 letter, the Agency alerted CLC of the requirement to stop
accepting waste by September 18, 1997, if the Agency had not received a sigmod application
by that date. Resp. at 4, exh. A.
On September 17, 1997, CLC sent the Agency a letter. In that letter, CLC wrote that it
believed it was operating the landfill pursuant to the temporary relief provision at Section
814.105(b) of the Board’s regulations. CLC advised the Agency that it planned to continue its
operations beyond September 17, 1997. CLC did not receive a response to the letter from the
Agency. CLC Mot. at 4, exh. E. CLC continued accepting waste at Parcel A after
September 17, 1997. Sec. am. comp. at 36; comp. Mot. at 3, exh B.
Over a year later, the Agency sent CLC a letter dated December 1, 1998, and a
November 19, 1998 inspection report. The Agency alleged that CLC was in violation of
Section 21(d)(1) of the Act because it failed to submit a sigmod application on June 15, 1993,
and continued to operate the landfill past September 18, 1997. CLC Mot. at 4, exh. G. On
January 13, 1999, CLC sent complainant and the Agency a letter that refuted the Agency’s
allegations. CLC did not receive a reply. CLC Mot. at 4; exh. H.
On August 4, 2000, the Agency issued sigmod permits authorizing CLC to operate
Parcels A and B. CLC Mot. at 4, exh. D. Some of the conditions in those permits are the
subject of a permit appeal which the Board is deciding today. See Community Landfill
Company and City of Morris v. IEPA (April 5, 2001), PCB 01-48, 01-49.
The Appellate Court Order
The unpublished Appellate Court order is integral to the outcome of this matter. In the
order, the Appellate Court held:
Although we agree that CLC’s lack of due diligence and unexplained failure to
seek a variance for 22 months after the filing deadline is troubling and precludes
the extraordinary relief of granting a retroactive variance, a prospective variance
should be granted.
5
* * *
For the reasons stated, we set aside the September 21, 1995, decision of the
Illinois Pollution Control Board denying CLC’s petition for a variance and order
the Board to grant CLC a 45-day prospective variance. Community Landfill
Co., No.3-96-0182, slip op. at 6, 7.
COUNT 5
Allegation
Count 5 pertains to Parcel B. Complainant alleges that CLC neglected to timely file a
required sigmod permit application by the June 15, 1993 deadline established by the Agency
pursuant to 35 Ill. Adm. Code 814.104. Complainant alleges that CLC has violated Section
21(d)(2) of the Act and Section 814.104 of the Board’s waste disposal regulations. Sec. am.
comp. at 14-16; comp. Mot. at 4.
Complainant’s Arguments
Complainant acknowledges that the Appellate Court directed the Board to allow CLC to
file a sigmod application by August 5, 1996. Complainant points out that the variance was
only prospective, not retroactive. Complainant argues that the distinction is crucial to this
matter. Comp. Mot. at 5-6.
Complainant states that a retroactive variance would have put CLC in the legal position
of having timely filed their sigmod application – as if it had been filed on June 15, 1993.
Comp. Mot. at 6; Surreply at 2.
However, the Appellate Court only authorized a prospective variance for CLC.
Complainant argues that CLC is in the legal position of having missed the deadline. The
prospective variance merely allowed CLC to file the sigmod application and allowed for
Agency review of the application. Complainant contends that the filing of the August 5, 1996
sigmod application was not timely. Comp. Mot. at 6-7; Resp. at 2-3; Surreply at 1-2.
Complainant states that “Any other interpretation would make the distinction between a
prospective and retroactive variance meaningless.” Comp. Mot. at 7; see also Resp. at 2;
Surreply at 1-2.
CLC’s Arguments
CLC argues that if the Board holds that CLC’s August 5, 1996 sigmod application was
not timely filed, the variance would be meaningless. CLC Mot. at 8, 9; Reply at 4. CLC
claims that the Appellate Court’s decision and the subsequent Board order granting the
variance means that CLC’s August 5, 1996 sigmod application “was timely filed, just as if it
had been filed on or before June 15, 1993.” CLC Mot. at 7; see also Reply at 2-3, 4. CLC
claims that to hold otherwise would “negate the effect of the Appellate Court’s decision --
6
which was to allow CLC additional time to comply with the June 15, 1993 filing deadline.”
CLC Mot. at 7.
Discussion/Finding
CLC did not file a sigmod application for Parcel B by the Agency-imposed June 15,
1993 deadline but instead filed the sigmod application on August 5, 1996. The prospective
nature of the Appellate Court holding does not put CLC in the position as having timely filed
its sigmod application. As a result the Board finds that CLC violated Section 814.104 of the
Board’s regulations and Section 21(d)(2) of the Act by missing the filing deadline. The
violation of count 5 lasted from June 15, 1993 until August 5, 1996.
The Board grants summary judgment to the Agency on count 5, but only as it relates to
liability. Evidence and arguments regarding penalties and costs should be presented at hearing
(see below). In light of the permit appeal that the Board is deciding today, the Board
encourages the parties to expedite review of issues raised to the closure of Parcel B.
COUNT 12
Allegation
Count 12 pertains to Parcel A. Complainant alleges that by failing to timely file a
sigmod application, CLC had no legal authority to continue accepting waste at Parcel A past
September 18, 1997. Complainant claims that CLC conducted a landfill operation without a
permit by accepting waste at Parcel A after September 18, 1997. Complainant alleges that
CLC violated Section 21(d) of the Act, Subpart C at 35 Ill. Adm. Code 814.301(b), and
Subpart D at 35 Ill. Adm. Code 814.401. Sec. am. comp. at 36-37.
In their competing motions for summary judgment on count 12, the parties argue
interpretations of Section 814.105 of the Board’s regulations and the application of the doctrine
of
laches
.
Section 814.105
Resolution of this issue relates to interpretation of the Appellate Court order as it
relates to 35 Ill. Adm. Code 814.105(b). 35 Ill. Adm. Code 814.105(b) provides temporary
relief from the closure requirement at Subpart D if an owner or operator of a landfill timely
files a sigmod application. Those landfills timely filing a sigmod application are allowed to
operate under their existing permits issued under 35 Ill. Adm. Code 807.
Complainant’s Arguments
Complainant argues that since CLC did not file the sigmod application by the Agency-
established date of June 15, 1993, it was required to stop accepting waste at Parcel A by
7
September 18, 1997. Complainant argues that Section 814.105(b) of the Board’s regulations
does not allow CLC to operate under its old permit issued under 35 Ill. Adm. Code 807
because the August 5, 1996 sigmod application was not timely filed. Complainant argues that
CLC was only given a prospective variance and that it could not legally accept waste until the
Agency granted a sigmod permit. Comp. Mot. at 4-5.
CLC’s Arguments
CLC essentially argues that the prospective variance allowed it to be in compliance with
Section 814.105(b) of the Board’s regulations once it filed the sigmod application pursuant to
the Board’s June 20, 1996 variance order (which followed the Appellate Court order). CLC
reasons that, since it filed the sigmod application within the 45-day time limit set by the
Board’s June 20, 1996 variance order, it lawfully operated Parcel A from the filing of the
sigmod application on August 5, 1996. CLC Mot. at 9.
CLC cites People v. ESG Watts (February 5, 1998), PCB 96-107 as precedent in
support of its interpretation of the rules. In ESG Watts, complainant claimed that since ESG
Watts filed its sigmod application late, the provision at 35 Ill. Adm. Code 814.105(b)
providing temporary relief from the closure requirement did not apply. The Board found in
favor of ESG Watts on this point because ESG Watts had already been held in violation of the
filing deadline at 35 Ill. Adm. Code 814.104 and Section 21(d)(2) of the Act in another matter.
See People v. ESG Watts (May 4, 1995), PCB 94-127. In addition, the Board found for ESG
Watts on this point because complainant did not raise the issue of temporary relief from the
closure requirement in PCB 94-127 nor did complainant raise that issue during discussions
regarding the two sigmod applications that ESG Watts filed. ESG Watts, PCB 96-107, slip op.
at 31-32; CLC Mot. at 7-8, 12-13.
Discussion/Finding
The Board is persuaded by CLC’s arguments about the prospective effect of the
variance and its relation to Section 815.104(b) of the Board’s regulations. The Board finds
that, once CLC filed its sigmod application on August 5, 1996, (as allowed by the Board’s
June 20, 1996 variance) the sigmod was properly filed for purposes Section 814.105(b). While
CLC is subject to a penalty for the period from June 15, 1993, until August 5, 1996, CLC
operated lawfully under the terms of Section 814.105(b) until the Agency took action on the
August 5, 1996 application and all appeals on that action were completed. Until the Agency
rejects a permit application, CLC is deemed to operate under its old permit issued pursuant to
35 Ill. Adm. Code 807. See 35 Ill. Adm. Code 814.105.
The record indicates that the Agency issued a permit to CLC for the vertical expansion
of Parcel A on October 11, 1996. Although the language in the letter filed with the permit
states “this permit does not constitute a partial approval of the significant modification required
by 35 Ill. Adm. Code 814.104”, the language does not state that the Agency rejected the
sigmod permit application.
8
However, in the permit appeal that the Board is deciding today, the record indicates
that the Agency denied CLC’s sigmod permit applications on September 1, 1999. See
Community Landfill Company and City of Morris v. IEPA (April 5, 2001), PCB 01-48, 01-
49, slip op. at 5. The record in this enforcement case is silent on the Agency’s denial of the
August 5, 1996 sigmod permit application. The Board does not have enough facts to properly
decide if CLC has violated count 12 from September 1, 1999 to the filing of the sigmod
application on August 4, 2000. The Board finds that this matter must be further discussed at
hearing.
Laches
“
Laches
is an equitable doctrine which precludes the assertion of a claim by a litigant
whose unreasonable delay in raising that claim has prejudiced the opposing party.” Tully v.
Illinois, 143 Ill.2d 425, 432, 574 N.E.2d 659, 663 (1991); see also City of Rochelle v. Suski,
206 Ill.App.3d 497, 501, 564 N.E.2d 933, 936 (2d Dist. 1990).
Laches
is based on the notion
that courts will not readily come to the aid of a party who has “slept on his rights to the
detriment of the opposing party”. Tully,143 Ill.2d at 432, 574 N.E.2d at 663.
The application of
laches
to government is generally disfavored. The Illinois Supreme
Court has held that
laches
will not be applied to the State “in its governmental, public, or
sovereign capacity,” and it can not be applied to the State in “the exercise of its police powers
or in its power of taxation or the collection of revenue.” However, the State does not have
“absolute immunity” from
laches.
The doctrine may be applied when the State is “acting in a
proprietary, as distinguished from its sovereign or governmental capacity . . . and even, under
more compelling circumstances, when acting in its governmental capacity.” Hickey v. Illinois
Central Railroad Co., 35 Ill. 2d 427, 448, 220 N.E.2d 415, 425-426 (1966) (citations
omitted); see also Van Milligan v. Board of Fire and Police Commissioners, 158 Ill. 2d 84,
630 N.E.2d 830 (1994); People v. ESG Watts (February 5, 1998), PCB 96-107, slip. op at 7;
People v. Bigelow Group, Inc. (January 8, 1998), PCB 97-217, slip op. at 2. To successfully
allege
laches
, CLC must show (1) that complainant exhibited a lack of due diligence and (2)
that CLC was prejudiced. Van Milligan, 158 Ill. 2d at 89, 630 N.E.2d at 833; Tully, 143 Ill.
2d at 432, 574 N.E.2d at 663.
CLC’s Arguments
Even if the Board ultimately finds that CLC is in violation of count 12 from
September 1, 1999, to August 4, 2000, CLC argues that the Board should grant it summary
judgment on count 12 based on the doctrine of
laches
.
CLC argues that
laches
applies because complainant waited over two years – from the
September 18, 1997 closure deadline to the filing of the second amended compliant on
November 24, 1999 – to allege that the operations at the landfill were not permitted. CLC
claims that it was not aware of the impending allegations until it received the December 1,
1998 letter and November 19, 1998 inspection report from the Agency. CLC argues that it
was prejudiced as a result of the complainant’s two-year delay. In particular, CLC states that
9
it never received responses to the letters which it sent to the Agency and the complainants (on
September 18, 1997, and January 13, 1999) seeking clarification on the status of its permit.
CLC Mot. at 10-11; Reply at 4. CLC claims that if complainant had acted sooner, CLC would
have been in a better position to address the allegations. CLC claims it is prejudiced because
complainant is seeking penalties on a per-day basis for the two years that it did not respond to
CLC’s inquiries. Reply at 4.
Complainant’s Arguments
Complainant responds that the
laches
argument is flawed for several reasons.
Complainant claims that there was no delay. Complainant cites its April 24, 1997 letter to
CLC. Resp. at 4, Exh. A. Complainant contends that it did not show a lack of due diligence
because it alerted CLC of impending violations of the Board’s regulations five months before
the September 18, 1997 deadline. Resp. at 4. Complainant also contends that CLC was not
prejudiced. Resp. at 4-5. As a result, complainant contends that the
laches
claim must fail.
Resp. at 5.
CLC replies that the April 24, 1997 letter was a form notice sent to all landfill
operators in Illinois who had not yet received a sigmod permit. CLC also states that the
April 24, 1997 letter did not specifically mention the temporary relief provision at 35 Ill. Adm.
Code 814.105(b). CLC further claims that the April 24, 1997 letter does not address the lack
of feedback to CLC after it submitted the letters seeking clarification on the status of its
permit. Reply at 3-4.
Complainant points out that CLC admits it was given notice of the September 18, 1997
deadline. Complainant maintains that CLC had full notice that it would be in violation of the
Act if it did not have an approved sigmod permit by September 18, 1997. Complainant
maintains that it acted with diligence and that CLC has not shown how it was prejudiced.
Complainant admits that the temporary relief provision at Section 814.105(b) of the Board’s
regulations was not addressed in the letter because it did not apply to CLC. The temporary
relief provision only applied to facilities that timely filed their sigmod applications. Surreply
at 2-3.
Discussion/Finding
CLC makes some pertinent arguments regarding lack of due diligence. Complainant
does not explain why it did not respond to CLC’s letters seeking clarification on the status of
CLC’s permit. Complainant also should have argued its case regarding the temporary relief
provision at 35 Ill. Adm. Code 814.105(b) before CLC filed its sigmod application.
CLC’s arguments regarding prejudice are mixed. If found to be in violation of count
12, CLC may suffer prejudice as a result of penalties that are assessed on a daily basis and
complainant’s delay in making the allegation. However, CLC makes a vague claim with
respect to being better able to address the allegations in count 12 if it had known of them
10
sooner. CLC does not elaborate on how it could have better addressed the allegations, and the
Board can not discern how CLC could have done so.
The state is not acting in a proprietary capacity in this matter, so if
laches
is to apply in
this instance, there must be “compelling circumstances.” CLC never discusses the compelling
circumstances in this matter. The Board finds that CLC’s
laches
argument is thus incomplete.
In order for the Board is to make an informed finding on
laches
as it applies to count 12, it
will request that the parties discuss the compelling circumstances portion of the
laches
test at
hearing. This does not preclude the parties from further developing the other portions of their
laches
arguments at hearing.
CIVIL PENALTIES/COSTS/CEASE AND DESIST
Arguments
Complainant requests that, in addition to finding in its favor on counts 5 and 12, the
Board should also assess a civil penalty. The civil penalty should account for the economic
benefit that CLC realized from September 18, 1997, to the present, assess costs against CLC,
and order CLC to cease and desist from further violations of the Act. Comp. Mot. at 7-8;
Resp. at 5-6; Surreply at 4-5.
CLC claims that the penalty decision should not be decided in a summary judgment
decision but instead should be discussed at hearing. CLC Mot. at 8-9; Reply at 2. CLC
claims that it waited to file the variance until April 26, 1995 – almost two years after the
sigmod application deadline - because it was engaged in negotiations with the City of Morris.
As a result, it claims that it should not be penalized. Resp. at 2.
CLC claims that the request for a cease and desist order is moot. CLC is currently
operating Parcel A under the permit that the Agency issued on August 4, 2000. CLC Mot. at
10. In its response, complainant agrees that the August 4, 2000, permit moots the request for
the cease and desist order but argues that CLC should be liable for the allegations in count 12
through August 4, 2000. Resp. at 3.
Discussion/Finding
The Board agrees with CLC that deciding penalties and costs at this point would be
premature. In assessing penalties, the Board looks at the factors listed at Section 42(h) of the
Act. 415 ILCS 5/42(h) (1998). Each of the factors involves factual determinations, and, as
such, the factors are not appropriately discussed in an order on cross motions for summary
judgment. As both parties agree that the request for a cease and desist order is moot, the
Board will not impose one.
11
CONCLUSION
For the foregoing reasons, the Board grants complainant’s motion for summary
judgment with respect to count 5 only, but penalty issues must be discussed at hearing. The
Board denies both parties’ motions for summary judgment with respect to count 12 and orders
that this matter be discussed at hearing.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 5th day of April 2001 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
