BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
COMMUNITY LANDFILL COMPANY, INC.,
)
an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
)
)
Respondent.
)
PCB NO. 03-191
(Enforcement - Land)
NOTICE OF FILING
TO:
See Attached Service List
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office
of the Clerk of the
Illinois Pollution Control Board
by electronic filing the following PEOPLE'S OBJECTION TO
THE CITY OF MORRIS' MOTION FOR LEAVE TO FILE AMENDED AFFIRMATIVE
DEFENSES, a copy
of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF
THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State
of Illinois
B~~cA=:I0Mf!S
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20
th
Floor
Chicago, Illinois 60601
(312) 814-0609
DATE: September
6,2007
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, September 6, 2007
SERVICE LIST
Richard Porter
Charles F. Helsten
Hinshaw & Culbertson, LLP
100 Park Avenue
Rockford, Illinois 61105
rporter@hinshawlaw.com
chelsten@hinshawlaw.com
Mark LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd.
200 N. LaSalle Street, Ste. 2810
Chicago, Illinois 60610
mlarosechicago@aol.com
clarissagrayson@aol.com
Electronic Filing, Received, Clerk's Office, September 6, 2007
CERTIFICATE OF SERVICE
I, JENNIFER A. TOMAS, an Assistant Attorney General, certify that I caused copies of
the foregoing Notice of Filing and People's Objection to the City of Morris' Motion for Leave to
File Amended Affinnative Defenses to be served upon the persons listed
on said Notice by
electronic mail (e-mail) on September 6,2007.
Electronic Filing, Received, Clerk's Office, September 6, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
COMMUNITY LANDFILL COMPANY, INC.,
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
PCB NO. 03-191
(Enforcement - Land)
PEOPLE'S OBJECTION TO RESPONDENT CITY OF MORRIS'
MOTION FOR LEAVE TO FILE AMENDED AFFIRMATIVE DEFENSES
NOW COMES the Complainant, People of the State of Illinois ("People"), and objects to
the Respondent City of Morris' (hereinafter the "City") Motion for Leave to File Amended
Affirmative Defenses which was filed with the Illinois Pollution Control Board ("Board") on
September 5, 2007. In support of this Objection, Complainant states as follows:
1.
On February 16,2006, the Board entered an Interim Opinion and Order in this
matter finding that the City of Morris and Community Landfill Corporation ("CLC") violated
Section 21(d)(2)
of the Act, (415 ILCS 5/21(d)(2) (2004), and Sections 811.700(f) and
811.712(b) of the Board'sregulations. 35 Ill. Adm. Code 811.700(f), 811.712(b). Liability has
been established as to the City, and the City'S attempt to affect that finding through
inappropriate, untimely affirmative defenses should be denied.
2.
On June 1,2006, in response to CLC and the City'smotions to reconsider the
February 16, 2006 Board Order, the Board issued a second Order and upheld the February
16,
2006 Interim Opinion and Order granting summary judgment on the financial assurance
1
Electronic Filing, Received, Clerk's Office, September 6, 2007
violations.
3.
The February 16, 2006 Board Order, which was affirmed by the June 1,2006
Board Order, resolved the liability if:;sues alleged in the People's one count complaint. The only
remaining issue is for the Board to decide the appropriate relief for the violations. Pursuant
to
the Board'sOrders, the evidence at hearing is to address the Sections 33(c) and 42(h) factors as
applicable.
4.
The City's attempt to file affirmative defenses is untimely and therefore
unreasonable in contravention
of Section 2-616(a) of the Code of Civil Procedure, 735 ILCS 5/2-
616(a) (2006).
In
determining whether to grant leave to amend pleadings, trial courts consider:
(1) whether the proposed amendment would cure the defective pleading, (2) whether other parties
would sustain prejudice or surprise by virtue
of the proposed amendment, (3) whether the
proposed amendment is timely, and (4) whether previous opportunities to amend the pleading
could be identified.
Enzenbacher
v.
Browning-Ferris Industries ofIllinois, Inc.,
332
Ill.
App. 3d
1079, 1086; 774 N.E.2d 858,863
(2
nd
Dist. 2002). The relief sought by the People in the
Complaint and reiterated in the Board's Orders is not new and any affirmative defenses could
and should have been filed earlier in the litigation. There is simply no excuse for the City asking
the Board on the eve
of trial for leave to file affirmative defenses; absolutely nothing has changed
since the Board entered its June 1,2006 Order affirming its Order entered Februaryl6, 2006.
The request to file amended affirmative defenses is clearly untimely. Further, granting the City's
motion for leave will prejudice the People because trial is scheduled to begin Tuesday,
September
11,
2007, and there is no time for the People to respond if the Board grants the request
for leave
to file. The People should not be punished because the City was tardy in seeking to file
2
Electronic Filing, Received, Clerk's Office, September 6, 2007
its amended affirmative defenses. Lastly, the City had the opportunity to file amended
affirmative defenses since at least June 6, 2006, but waited until September 5, 2007, to file them,
again, on the eve
of trial.
5.
The so-called affirmative defenses that the City seeks leave to file mainly attach to
the allegations
of the Complaint and do not go to remedy but to liability, i.e., No.1: denies the
City owned
or operated the landfill; No.3: a public entity is not liable for the act or omission of
its employee; No.5: the complaint is barred by laches; No.6: the City had bonds (financial
assurance);
No.9: no agent of the City could obligate the City to post financial assurance. Most
of the others do not appear to be affirmative defenses. Since most of the issues raised in the
affirmative defenses have already been settled and decided
by the Board, the amended
affirmative defenses are irrelevant.
WHEREFORE, for the foregoing reasons,
the People of the State of Illinois respectfully
request that the Board deny the City'srequest for leave to file its amended affirmative defenses.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
torney General
of the State of Illinois
BY:
--....,.uwn.u. ER
A.
OMAS
CHRISTOPHER GRANT
Assistant Attorneys General
Environmental Bureau
69 West Washing St.,
18
th
Floor
Chicago, Illinois 60602
(312) 814-0609
(312) 814-5388
G:\Environmental Enforcement\J TOMAS\Comm Landfill - City of
Morris\ResponseMotionFileAmendedAffirrnativeDefenses.090.05.07.doc
3
Electronic Filing, Received, Clerk's Office, September 6, 2007
