ILLINOIS POLLUTION CONTROL BOARD
    PEOPLE
    OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    )
    )
    v.
    )
    )
    COMMUNITY LANDFILL COMPANY, INC., )
    and CITY OF MORRIS, an Illinois Municipal
    )
    Corporation"
    )
    )
    Respondents.
    )
    NOTICE OF FILING
    TO: SEE ATTACHED SERVICE LIST
    PCB 03-191
    (Enforcement - Land)
    PLEASE TAKE NOTICE that
    on August 29, 2007. we electronically filed with the Clerk
    of the Illinois Pollution Control Board, the Respondent, City of Monis', Motion for Leave to
    File Amended Affirmative Defenses, a copy of which is attached hereto and hereby served
    upon you.
    Dated:
    Charles F. Helsten
    Hinshaw
    & Culbertson LLP
    100 Park Avenue
    P.O.
    Box 1389
    Rockford, IL 61105-1389
    815-490-4900
    Respectfully submitted,
    ORRIS
    70S35478vl 806289
    Electronic Filing, Received, Clerk's Office, September 5, 2007
    AFFIDAVIT OF SERVICE
    The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of Civil
    Procedure, hereby under penalty
    of perjury under the laws of the United States of America,
    certifies that
    on September 5,2007, she caused to be served a copy ofthe foregoing upon:
    Mr. Christopher Grant
    Mark LaRose
    Assistant Attorney General
    Clarissa Grayson
    Environmental Bureau
    LaRose
    &
    Bosco, Ltd.
    69 W. Washington St., Suite 1800
    200 N. LaSalle, Suite 2810
    Chicago, IL 60602
    Chicago,
    IL
    60601
    Mr. John
    T. Therriault, Assistant Clerk
    Bradley Halloran
    Illinois Pollution Control Board
    Hearing Officer
    100 W. Randolph, Suite 11-500
    lllinois Pollution Control Board
    Chicago,
    IL
    60601
    100
    W. Randolph, Suite 11-500
    (via electronic filing)
    Chicago,
    IL
    60601
    Mr. Scott Belt
    Jennifer A. Tomas
    Scott M. Belt
    &
    Associates, P.C.
    Office
    ofthe Attorney General
    105 East Main Street
    Environmental Bureau
    Suite 206
    500 South Second Street
    Morris, IL 60450
    Springfield,
    IL 62706
    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,
    IT.. 61105-1389
    (815) 490-4900
    7041 S200V I 806289
    Electronic Filing, Received, Clerk's Office, September 5, 2007
    PCB No. 03-191
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    PEOPLE
    OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    )
    )
    v.
    )
    )
    COMMUNITY LANDFILL COMPANY, INC.
    )
    an lllinois
    corporatio~
    and the CITY OF
    )
    MORRIS. an lllinois municipal corporation,
    )
    )
    Respondents.
    )
    MOTION FOR LEAVE TO FILE AMENDED AFFIRMATIVE DEFENSES
    NOW COMES the Respondent, CITY OF MORRIS, by and through its attorneys,
    HINSHAW
    &
    CULBERTSON, LLP, and in support of its Motion for Leave to File Amended
    Affinnative Defenses states as follows:
    1.
    The City has from the onset of this litigation asserted that it
    has
    not conducted
    waste disposal operations at the Morris Community Landfill, and
    has
    strenuously argued that it
    therefore bears no responsibility for closure/post-closure costs of the Landfill.
    2.
    This Board has, however, held in its Interim Order of February 16, 2006 that the
    City has conducted waste disposal operations at the Landfill, and has authorized a hearing
    on a
    final remedy to be imposed against the Respondents.
    3.
    Although the City adamantly reiterates that it is not liable for the posting of
    closure/post closure financial assurance, in light of the Board's Interim Order and holding that
    the City is to
    be treated as such for purposes of these proceedings, it is incumbent upon the City
    to respond to the proposed remedy and penalties urged
    by the State with Amended Afftrmative
    Defenses. The City's Affirmative Defenses to the proposed remedy and penalties include the
    Illinois Tort Immunity Act, which provides statutory protection for local public entities
    in
    actions
    arising from the operation ofgovernrnent. 745 ILCS
    lO/l-lOl.l(a).
    70535903v! 806289
    Electronic Filing, Received, Clerk's Office, September 5, 2007
    4.
    Section 2-616(a) of the Code of Civil Procedure allows amendments ofpleadings
    on just and reasonable tenns at any time before final judgment. 735 ILCS 5/2-616(a) (2004).
    5.
    The most important consideration in whether to allow a requested amendment is
    whether allowing the amendment furthers the ends
    of justice.
    Savage v. Pho,
    312
    Ill.
    App. 3d
    553,556-57 (5th Dist. 2000). Any doubts as to whether leave to file an amended pleading should
    be granted should be decided in favor
    of allowing the amendment.
    ld.
    6.
    The issues raised in the City's Amended Affirmative Defenses have been known
    by the State since the onset of this controversy, and seek
    to
    protect the interests of the taxpayers
    and residents
    of a municipality. Moreover, no prejudice will result in the filing of the Amended
    Affirmative Defenses, and no delay is necessary as a result ofthe Affumative Defenses.
    7.
    The City's Affinnative Defenses
    are
    delineated
    in
    the attached, "Amended
    Affinnative Defenses
    of the City ofMorris."
    WHEREFORE, the City of Morris respectfully requests that the Board grant leave to file
    the attached Amended Affirmative Defenses.
    Dated: September 5, 2007
    Charles
    F. Helsten
    Hinshaw
    &
    Culbertson LLP
    100 Park Avenue
    P.O. Box 1389
    Rockford, IL 61105-1389
    815-490-4900
    Respectfully submitted,
    ORRIS
    This document utilized 100% recycled paper products.
    Electronic Filing, Received, Clerk's Office, September 5, 2007
    PCB 03-191
    (Enforcement - Land)
    ILLINOIS POLLUTION CONTROL BOARD
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    )
    )
    v.
    )
    )
    COMMUNITY LANDFILL COMPANY, INC., )
    and CITY OF MORRIS, an lllinois Municipal
    )
    COIporation"
    )
    )
    ltespondents.
    )
    AMENDED AFFIRMATIVE DEFENSES
    NOW COMES Respondent, CITY OF MORRIS,
    by and through its attorneys,
    HINSHAW & CULBERTSON LLP, and as and for its Affirmative Defenses, states
    as follows:
    1.
    The City of Morris neither owned nor conducted a waste disposal operation at the
    Morris Community Landfill at the time
    ofthe alleged violation or at any time thereafter.
    2.
    Pursuant to Section 10/2-102 of the Illinois Tort Immunity Act, the City of Morris
    is immune from liability for penalties and attorneys fees which are being sought
    by the State of
    Illinois. 745 ILCS 10/2-102 (2006).
    3.
    Pursuant to Section 10/2-109 of the Tort Immunity Act, a public entity is not
    liable for an act or omission
    of its employee where the eiIlployee is not liable. Furthermore, a
    public employee acting
    in his scope of employment is not liable for a negligent misrepresentation
    or the providing
    of such infonnation either orally, in writing, by computer, or any other
    electronic transmission.
    If any employee or agent of the City of Morris indicated at the time of
    the alleged failure to post financial assurances that the City was the owner or operator of the
    landfill or obligated
    to post such fmancial assurances, such statement was a negligent
    misrepresentation for which the City is immune from liability. 745 ILCS 10/2-109; 745 ILCS
    10/2-210 (2006).
    70535910vl 8062g9
    Electronic Filing, Received, Clerk's Office, September 5, 2007
    4.
    The closure and post-closure costs sought by the State of Illinois are not
    supported
    by the evidence.
    5.
    The Complaint is barred
    by the doctrines of laches and estoppel, because the State
    approved the transfer of the operating and development permits from the City to Community
    Landfill Company; and because the State failed to compel Community Landfill Company to
    close Parcel B
    of the facility in a timely fashion; and because the Agency accepted Frontier
    bonds and issued a modification permit on August 4, 2000, knowing that Frontier had been
    delisted.
    6.
    The Frontier insurance bonds complied with all applicable regulations at the time
    of their issuance and were accepted as such by the Agency.
    7.
    At no time did the City of Morris willfully, knowingly or repeatedly violate any
    State law, and thus the award of costs and attorneys fees are not allowable.
    8.
    Pursuant to Sections 33(c) and 42(h). the proposed remedy of the State of Illinois
    is impractical and impossible to be accomplished by the City ofMoms, which lacks the ability to
    pay the same.
    9.
    If
    any agent of the City of Morris executed a document at the time of the alleged
    failure to post fmancial assurances indicating that the City was the owner
    or operator of
    Community Landfill, or was obligated to post financial assurances, such act was unauthorized
    and
    ultra vires,
    and cannot be the basis for the imposition of any remedy or penalty against the
    City of Morris.
    WHEREFORE, the City
    of Morris, an lllinois Municipal Corporation, prays that
    judgment be rendered
    in
    its favor and that no remedy be imposed against the City and no order
    compelling payment
    or any penalties or attorneys' fees be issued..
    2
    70535910v1806289
    Electronic Filing, Received, Clerk's Office, September 5, 2007
    Dated:
    September
    5,
    2007
    Charles
    F.
    Helsten
    Hinshaw
    &
    Culbertson
    LLP
    100
    Park
    Avenue
    P.O.
    Box
    1389
    Rockford,
    IL
    61105-13
    89
    815-490-4900
    Respectfully
    submitted,
    On
    behalf
    of
    the
    CITY
    OF
    MORRIS
    lsi
    Charles
    F.
    Helsten
    Charles
    F.
    Helsten
    One
    ofIts
    Attorneys
    3
    7053591
    Ov
    I
    806289
    Electronic Filing, Received, Clerk's Office, September 5, 2007

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