2

MOTION FOR INTERLOCUTORY

APPEAL

In support of its interlocutory appeal, the People argue that CLC’s motion is legally

insufficient and that Mr. Pruim is not a necessary party to this action. First, the People contend

that pursuant to Section 101.510 of the Board’s procedural rules, CLC’s motion to cancel the

hearing had to have proposed a date to reschedule the hearing, but did not. Mot. at 2; citing 35

Ill. Adm. Code 101.510(b). Second, the People note that Mr. Pruim is not a respondent in this

matter, but is a co-owner of CLC and acts as secretary and treasurer of the corporation.

Id

. at 1.

The People contend that Mr. Pruim was not previously named as a witness at the time of the

motion, made less than a month away from hearing. The People argue that Mr. Pruim’s

participation is not necessary for a full and complete hearing on the remaining issues in this case.

Id

. at 3. The People add that using Mr. Pruim’s absence to delay hearing essentially allows the

respondents to continue violating the Environmental Protection Act (Act) for the near future.

Id

.

at 4.

On October 12, 2006, Morris opposed the People’s motion for interlocutory appeal

(Resp.). Morris states that Mr. Pruim is now a named witness in this proceeding and his

participation in this proceeding is essential. Resp. at 2. According to Morris, Mr. Pruim is the

treasurer and chief financial officer of CLC and that matters involving closure and post closure

financial assurance will necessarily involve financial questions. Morris states it fears that if only

one corporate representative (Mr. Edward Pruim’s brother, Mr. Robert Pruim) is called, he will

“simply demurrer and defer to knowledge possessed by Mr. Edward Pruim . . . thereby in

essence ‘whipsawing’ the City.”

Id

.

Morris further contends there is no urgency to hold a hearing on remedy. Morris asserts

that Mr. Devin Moose, Morris’ primary technical consultant, stated in his deposition that no

imminent and substantial threat to human health or the environment is posed by the landfill.

Resp. at 3 (referring to Exhibit B of Morris’ October 5, 2006 response to CLC’s motion to cancel

hearing and the People’s response in opposition to the motion to cancel hearing). Finally, states

Morris, at least one other material witness, Mr. Moose, has already made other plans and is now

also unavailable to appear and testify during the originally scheduled hearing dates.

Id

. at 4.

The People replied on October 13, 2006 (Reply). In reply, the People state that the

“deteriorating conditions” at the Morris Community Landfill warrant immediate action by the

Board to avoid “material harm.” Reply at 1. The People further state that the situation has

“seriously degraded,” and that closure costs have risen to $7.4 million. For these reasons,

contend the People, the Board must require that the respondents immediately secure financial

assurance for closure and post-closure care of the landfill.

Id

. at 3.

On October 18, 2006, CLC responded to the People’s motion. CLC states that due to the

nature of Mr. Pruim’s medical condition it was impossible to propose a date to reschedule the

hearing. CLC Resp. at 2. CLC contends that the hearing officer’s order should not be reversed

absent an abuse of discretion. CLC asserts that the People did not argue that the hearing officer

abused his discretion in granting the motion to cancel.

Id

. For these reasons, argues CLC, the

Board should deny the motion for interlocutory appeal.

Id

. at 3.

---

3

In granting CLC’s motion to cancel

hearing, the hearing officer stated that due to

the issues to be addressed at hearing on the issue of remedy, it appeared imperative that Mr.

Pruim, as a financial officer of CLC, be present at the hearing and available to testify. The

hearing officer further noted that CLC’s motion to cancel was not the result of lack of diligence.

The Board grants the People’s motion for interlocutory review and affirms the hearing

officer’s cancellation of the hearing. Without any explanation or evidence of what constitutes

“deteriorating conditions” or “material harm,” the Board will not overrule the hearing officer’s

order. As noted by CLC, the People have not shown there is any existing or immediate threat of

harm to human health or the environment caused by the landfill. As the hearing officer correctly

noted, the issue left to be determined is remedy. CLC identified Mr. Pruim as a witness on

October 2, 2006, consistent with the deadline set by the hearing officer for the filing of CLC’s

witness list. CLC has also properly moved the Board to cancel the hearing. Although the

motion contained no date certain to reschedule the hearing, the Board finds that an instance such

as this one, where a named witness experiences serious and unexpected medical problems, is

extraordinary. In this case, a date certain for rescheduling the hearing cannot yet be ascertained.

The Board is confident that the hearing officer will diligently work with the parties to identify a

hearing date as soon as it becomes possible.

MOTION FOR INTERIM RELIEF

The People cite no authority in support of their motion for interim relief, yet state the

Board should require the respondents to immediately arrange for closure and post-closure

financial assurance in the amount of $17,448,366. Mot. for Int. Rel. at 6. The People state that

the Illinois Environmental Protection Agency (Agency) has determined that respondents are

required to provide $17,448,366 of closure and post-closure financial assurance.

Id

. at 2, Exh.

A. According to the People, hearings have been held in other Board proceedings on issues

relating to CLC’s lack of financial assurance.

Id

. at 3; citing CLC and Morris v. IEPA, PCB 01-

48, 49 (consolidated). The People believe, therefore, that a third hearing is not necessary to

determine the amount of financial assurance.

The People state that the Board has broad authority to take actions reasonably necessary

to accomplish the purposes of the Act and that the requested relief is necessary to protect the

State. Mot. for Int. Rel. at 4; citing Discovery South Group Ltd. v. PCB, 275 Ill. App. 3d 547

(1st Dist. 1995). The People contend that the Board has not hesitated to order compliance prior

to final resolution of all penalty issues in the past.

Id

.; citing

Kratusack v. Patel

et al

., PCB 95-

143 (Aug. 21, 1997). Without a court-enforceable interim order to obtain compliant financial

assurance, state the People, the respondents will be allowed to avoid compliance as long as the

hearing is delayed.

Id

. at 5.

CLC contends that the Board was correct in finding that it was “premature” to rule on the

issue of penalty until factual determinations have been made in the February 16, 2006 interim

opinion and order. According to CLC, this proceeding has not been “indefinitely delayed” and

the People did not allege any imminent or irreparable harm that should prevent a postponement

due to an emergency medical situation.

---

4

The Board denies the People’s motion

for interim relief. As the Board found in its

February 16, 2006 interim opinion and order in this matter, it is premature to rule on the issue

of penalty before consideration of the Section 33(c) and Section 42(h) factors. People v. CLC,

PCB 03-191, slip op. at 12 (Feb. 16, 2006). In Kratusack, the Board ordered the respondent to

cease and desist before sending the parties to hearing to determine any appropriate civil

penalty, but only after the Board analyzed the relevant facts in light of the Section 33(c)

factors. Kratusack v. Patel

et al

., PCB 95-143 (Aug. 21, 1997).

Under Section 33 of the Act, a Board order may include a direction to cease and desist

from violations of the Act or any rule adopted under the Act, but only after determining the

reasonableness of the emissions.

See

415 ILCS 5/33(a)-(c) (2004). As held in the past, the

Board considers the factors in Section 33(c) and Section 42(h) of the Act (415 ILCS 5/33(c),

42(h) (2004)) in determining and assessing penalties and each of those factors require factual

determinations. People v. CLC, PCB 97-193, slip op

.

at 10 (Apr. 5, 2001). The Board finds

the People’s request for interim relief premature.

CONCLUSION

Accordingly, for the reasons set forth above, the Board grants the People’s motion for

interlocutory appeal of the hearing officer’s October 3, 2006 order, and affirms the hearing

officer’s order. The hearing originally scheduled to take place October 24 through 27, 2006 is

canceled. The Board denies the People’s motion for interim relief as premature and anticipates

that the parties will be prepared to address the issue of remedy at hearing.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on October 19, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board