BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDRECE
CLERK'S OF
I V
FICE
E
D
PEOPLE OF THE STATE OF ILLINOIS,,
)
OCT I 1 2006
Complainant,
)
Pollution OF
ILLINOIS
v.
)
PCB No. 03-191
Control
Board
COMMUNITY LANDFILL COMPANY, INC ., )
an Illinois Corporation, and CITY OF MORRIS,
)
an Illinois Municipal Corporation,,
)
Respondents .
)
NOTICE OF FILING
TO :
All counsel
.of Record (see attached Service List)
Please take notice that on October 10, 2006, the undersigned filed with the Illinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, City of Morris's
Response to Complainant's Motion for Interlocutory Appeal of Hearing Officer Order Granting
Community Landfill's Motion to Cancel Hearing .
Dated:
October 10, 2006
Respectfully submitted,
Charles
One
1of
1
Its
F .
AttorneysHelste
Charles F
. Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
P .O. Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized 100% recycled paper products
.
704920570 806289
BEFORE THE ILLINOIS POLLUTION CONTROL BOA
C E
I
V E D
PEOPLE OF THE STATE OF ILLINOIS,,
)
CLERK'S OFFICE
)
Complainant,
OCT 1 2 2006
)
STATE
OF ILLINOIS
V .
)
PCB No.
03-WOYution Control Board
COMMUNITY LANDFILL COMPANY, INC ., )
an Illinois Corporation, and CITY OF MORRIS,
)
an Illinois Municipal Corporation,,
)
Respondents .
)
CITY OF MORRIS'S RESPONSE TO COMPLAINANT'S MOTION FOR
INTERLOCUTORY APPEAL OF HEARING OFFICER ORDER
GRANTING COMMUNITY LANDFILL'S MOTION TO CANCEL
HEARING
NOW COMES the Respondent, City of Morris, an Illinois Municipal Corporation, and
for a response to the Complainant's Motion for Interlocutory Appeal, states as follows :
I.
THE MOTION TO CONTINUE HEARING SUBSTANTIALLY COMPLIED
WITH THE BOARD'S PROCEDURAL RULES, AND,
AS SUCH WAS LEGALLY
SUFFICIENT.
Contrary to the State's representations, CLC's Motion does set forth a proposed time to
reschedule the hearing
; namely, sometime after March 2007, that date being offered by Edward
Pruim's treating physicians as (in their professional opinion) the earliest practical date for a
person in Mr
. Pruim's medical condition to be expected to appear and participate in a rigorous
stressful and strenuous protracted contested hearing .
What the State conveniently fails to recognize is that while, in most instances, the
inavailability of a witness is due to a more easily ascertained and/or readily defined event (such
as a professional/personal emergency of rather immediate
[i .e.,
shortened] duration), in some
instances (such as the present case) a precise, readily ascertainable date cannot for rescheduling
of a hearing on the merits is all but impossible to ascertain
. In these instances, a request that a
70504183,1 806289
hearing be held sometime after the earliest date that a witness with ongoing serious medical
problem (like Mr
. Pruim's) should be deemed by this Board to be sufficient .
II. ED PRUIM IS A NECESSARY PARTY TO THIS ACTION
.
Contrary to the State's representation, the City has named Edward Pruim as a potential
witness in this matter . Again, the State conveniently omits the witness list which the City has
filed in this matter in conformance with Hearing Officer Bradley Halloran's prior Order (a copy
of which was marked as Exhibit A and attached to the City's Response to CLC's Motion to
Cancel Hearing). Again, a review of that witness list reflects that the City has included Edward
Pruim as a witness it intends to call at hearing . Again, due to the fact that
: 1) matters involving
closure/post closure financial assurance by their very essence involve financial questions, and 2)
Edward Pruim was the Treasurer and Chief Financial Officer of CLC Corporation, his
participation in this hearing is essential . In addition, as more than amply set forth by the City in
its initial Response (again, a portion of its Response which is conveniently ignored by the State),
the City fears that if only one corporate representative (i .e., Robert Pruim) is called in this matter,
that corporate representative will simply demurrer and defer to knowledge processed by Mr
.
Edward Pruim (again, who is the Treasurer and Chief Financial Officer of the Corporation)
thereby in essence "whipsawing" the City
. Again, (as established by the record made in this
matter to date) as the cost of complying with closure/post closure requirements could literally run
in the millions of dollars, and since the State is claiming that the tax payers of the City of Morris
are potentially responsible for payment of such costs and expenses, it is essential that a full
hearing be afforded to all parties with all witnesses and material evidence being received at that
hearing in order to comport with this Honorable Board's long-standing principles of fundamental
fairness.
2
70504183v1 806289
III. A "REMEDY" HEARING NEED NOT BE HELD WITHIN THE NEXT SEVERAL
WEEKS.
In addition, again, the State does not provide any specifics as to why a hearing must be
held within the next several weeks . In fact, in contrast to the State's total lack of any affirmative
demonstration as to why it is essential that a remedy hearing be held in this case within the net
several weeks, in the 106 page deposition which the City's primary technical consultant (Devin
Moose) gave to the Complainant, Mr . Moose testified that based upon the current status of
activities which have been undertaken at the landfill facility over the course of the past 1-2 years,
no imminent and substantial threat to the human health and/or environment is posed by this Site
.
As also noted by Mr. Moose in his deposition, since the Site is essentially closed, and, over the
course of the past two years, extensive site characterization and preliminary closure activities
have been undertaken by the City (pending final resolution of the City's alleged status as a party
responsible for posting of closure/post closure financial assurance) to assume the human health
and/or the environment are not harmed, there is no need for an immediate hearing in this matter .
Moreover, and as noted by Mr . Moose in his deposition testimony, the purpose of the financial
assurance provisions of the Act have been squarely met (i.e., to guarantee that closure/post
closure activities are initiated and ongoing), there is no immediate need for the conducting of a
remedy hearing in this matter, and, accordingly, the more paramount concern is affording all
parties a complete hearing on all issues and factors noted by this Honorable Board in its June 1,
2006 Order .
Again, as in its initial response to CLC's Motion to Continue this hearing, the City
wishes to again make clear it does not take sides where it supports one party or the other in this
matter. Rather, the City's sole and controlling concern is that it is afforded a full and fair hearing
on all the evidence which exists in this case, since the tax payers of the City of Morris are being
3
70504183v1 806289
asked to potentially undertake literally millions of dollars of closure/post closure activities
(which finding again, the City vigorously objects to)
. Again, the State conveniently chooses not
to apprise this Honorable Board of the very exacting and detailed nature of the testimony given
by Mr
. Moose which supports the City's position
. Interestingly enough, the State has offered no
response/rebuttal to Mr
. Moose's testimony
. All this being the case, one can only assume that
the State is not in a position to rebut/controvert Mr
. Moose's detailed, exacting testimony
.
Accordingly, and since the State has offered no affirmative demonstration that the Site is not
under control, appropriate closure activities have not been initiated, and that (perhaps most
importantly) the Site poses an imminent and substantial threat to the human health, safety and/or
the environment, there is no need whatsoever for a remedy hearing to be conducted within the
next several weeks in this matter.
IV
.
AT
THIS POINT IN TIME, AT LEAST ONE MATERIAL WITNESS TO BE
CALLED IN THIS MATTER HAS MADE ALTERNATIVE PLANS AND IS NOT
AVAILABLE.
After receiving Hearing Officer Bradley Halloran's Order canceling this hearing, and not
being able to envision any set of circumstances under which the State would not accept the sound
rationale set forth by Hearing Officer Halloran in support of his ruling, the City notified its
witnesses that this hearing had been cancelled so it could find an alternative productive use for
this time
. In that regard, counsel for the City has been apprised by Mr
. Devin Moose that he is
not now available to appear and testify at the hearing originally scheduled in this matter
. (See
Affidavit of Charles F
. Helsten attached hereto) .
As noted above, Mr
. Moose is a critical witness for the City, expected to provide
extremely relevant and probative testimony .
Based upon the fact that Mr
. Moose is now
4
70504183v1 806289
unavailable for this hearing through no fault of the City's, this Honorable Board should uphold
Hearing Officer's Halloran's Order
.
Again, and in summary, the Hearing Officer Bradley Halloran had more than ample
evidence presented to him which justified continuation of this hearing
. In turn, consistent with
Illinois law, absent an abuse of discretion by Mr
. Halloran, this Honorable Board should affirm
and uphold his ruling in this regard .
WHEREFORE, the Respondent City of Morris respectfully request that this Honorable
Board
: 1) deny this Interlocutory Appeal, 2) continue this matter to the December 7, 2006
telephonic status hearing established by Mr
. Halloran in this matter, 3) set this matter for hearing
on a proposed "remedy" in this matter at such time as a full and fair hearing can be afforded to
all parties, with all material witnesses and all material evidence being received at such hearing,
and 4) for such other further relief as this Honorable Board deems appropriate and just
.
Dated:
/
.1/Q`
Charles F . Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford,
815-490-4900IL
61105-1389
Respectfully submitted,
C
On behalf o fthe
IS
Charles- Helsten
~tfeof
Its Attorneys
This document utilized
100%
5
recycled paper products .
70504183x1 806289
A copy of the same was enclosed in an envelope in the United States mail at Rockford, Illinois,
proper postage prepaid, before the hour of 5 :00 p .m., addressed as above .
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on October 10, 2006, she caused to be served a copy of the foregoing upon :
70415200v1 806289
Mr. Christopher Grant
Assistant Attorney General
Environmental Bureau
188 W. Randolph St ., 20th Fl.
Chicago, IL 60601
Mark LaRose
Clarissa Grayson
LaRose & Bosco, Ltd.
200 N. LaSalle, Suite 2810
Chicago, IL 60601
Ms . Dorothy Gunn, Clerk
Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
Bradley Halloran
Hearing Officer
Pollution Control Board
100 W. Randolph, Suite I 1
Chicago, IL 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R
CLERK'S
ECEIVED
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,,
Complainant,
v .
COMMUNITY LANDFILL COMPANY, INC
.,
an Illinois Corporation, and CITY OF MORRIS,
an Illinois Municipal Corporation,,
Respondents .
AFFIDAVIT
I, Charles F
. Helsten being duly sworn under oath do depose and state as follows :
1 .
I am counsel of record for the Respondent, City of Morris in the above-mentioned matter
.
2.
Within that capacity, I have been charged with the responsibility of preparing evidence to
be presented on behalf of the Respondent City of Morris consistent with this Honorable Board's
ruling of June 1, 2006
.
3 .
Upon being apprised of Hearing Officer Halloran's ruling on the Motion to Cancel
Hearing, in order to provide the City's witnesses with as much advance notice as possible of the
cancellation of the hearing (so this time slot could be filled with other productive commitments)
I contacted Mr
. Devin Moose and advised him that this hearing had been cancelled
.
4 .
Upon receiving the State's Motion for Interlocutory Appeal, I contacted Mr
. Moose to
ascertain whether he was still available during the week of October 24-27
. Mr
. Moose advised
me at that time that he had filled his calendar for that week with other commitments which could
not be changed at this point in time
.
7050425' vi 806289
)
OCT 1
2 2006
)
Pollution
STATE
OFControl
ILLINOISBoard
)
PCB No. 03-191
)
)
)
)
Further Affiant Sayeth Not
.
SUBSCRIBED and WORN to
before me this
day of October, 2006
.
0
IV
OFFICIAL SEAL
JOAN LANE
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES:0123100
2
70504251 v1 806289
