ILLINOIS POLLUTION CONfROL BOARD
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    )
    )
    ~
    )
    )
    COMMUNITY LANDFILL COMPANY, INC., )
    and CITY OF MORRIS, an lllinois Municipal
    )
    Corporation,.
    )
    )
    Respondents.
    )
    NOTICE OF FlLING
    TO: SEE ATTACHED SERVICE LIST
    PCB 03-191
    (Enforcement - Land)
    PLEASE TAKE NOTICE that on September 10, 2007, we electronically filed
    with the
    Clerk
    ofthe lllinois Pollution Control Board, City ofMoms's Reply in Support ofIts Motion for
    Leave to File Amended Affrrmative Defenses, a copy
    of which is attached hereto and hereby
    served upon you.
    Dated:
    September 10, 2007
    Charles F. Helsten
    Hinshaw
    & Culbertson LLP
    100 Park Avenue
    P.O. Box 1389
    Rockford, IL
    61105-1389
    815-490-4900
    Respectfully submitted,
    On
    behalf ofthe CITY OF MORRIS
    lsi
    Charles F. Helsten
    One
    of Its Attorneys
    70535478V! 806289
    Electronic Filing, Received, Clerk's Office, September 10, 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
    w
    191
    CITY OF MORRIS'SREPLY IN SUPPORT OF ITS MOTION FOR
    LEAVE TO FILE AMENDED AFFlRMATIVE DEFENSES
    NOW COMES the Respondent, CITY OF MORRIS, by and through its attorneys, HINSHAW
    &
    CULBERTSON, LLP, and for its Reply in support of its Motion for Leave to File Amended Affmnative
    Defenses, states as follows:
    1.
    The State
    has
    objected to the City's request for leave to file amended Affinnative
    Defenses on the basis that the amended defenses are inappropriate and/or irrelevant because "[t]he only
    remaining issue is for the Board to decide the appropriate relief for the violations." (State's Response
    in
    . Opposition at
    ft
    1,3,5).
    2.
    Although the City respectfully disagrees with the Board'sprior decision holding the City
    liable for violating the Act, the City nevertheless respects the Board's order, and, accordingly, directs the
    proffered Amended Affirmative Defenses not at liability, but, instead, at the factors listed in 415 ILCS
    5/33(c), 42(f), and 42(h), which will be used to determine what remedy,
    if any, should be imposed against
    the City.
    3.
    Some representative illustrations
    of the remedies and factors at issue in the upcoming
    hearing which are directly impacted by the Amended Affirmative Defenses
    are:
    a. Potential Remedy: Attorney's Fees
    ~
    415 ILCS 5/42(f) provides for a potential award
    of attorney's fees, which is prohibited as against the City by the Illinois Tort
    hnrnunity Act.
    Yang v. City ofChicago,
    195 m.2d 96, 104 (2001).
    70536215v I 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    b. Potential Remedy: Punitive Damages -415 ILCS 5/42(h)(4) authorizes the levying of
    punitive penalties in order to "deter further violations by the respondent and to
    otherwise aid in enhancing voluntary compliance with this Act by the respondent and
    other persons similarly subject
    to the Act." The TIlinois Tort Immunity Act prohibits
    the assessment
    of punitive damages against a municipality. 745 ILCS 10/2-102.
    c. Factor MeZ): Attempts to Comply with the Act's Requirements - 415 ILCS 5/42(h)
    provides that among the factors to be considered in awarding a remedy are "the
    presence or absence
    of due diligence on the part of the respondent in
    attempting to
    comply with requirements of this Act and regulations
    thereunder."
    Id.
    (emphasis
    added). The City has at all times acted on the good faith belief that it was not the
    party required under the Act to post financial assurance, thus the Amended
    Affirmative Defenses expressing the City's position as to liability are entirely
    relevant
    to a consideration of this factor.
    4.
    As illustrated by the exemplars cited above, the amended AffJ.IIDative Defenses are
    directly relevant to the Board'sdetennination
    of the appropriate remedy to be imposed against the City, if
    any, at the upcoming hearing.
    5.
    As this Board noted in
    People
    v.
    Sheridan Sand and Gravel,
    PCB 06-177 (January 26,
    2007), it is the Board's.practice to allow amendments to pleadings filed with the Board, except
    in
    cases
    where it would prejudice a party.
    See also: People v. The Highlands, L.L.C. and Murphy's Farm, Inc.,
    PCB 00-104 (May 6,2004).
    6.
    Moreover, the most important consideration in whether to allow a requested amendment
    is whether allowing the amendment furthers the ends
    ofjustice.
    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.
    Id.
    7.
    In
    enacting the Illinois Tort Immunity Act, the legislature expressly immunized units of
    local government with respect to punitive judgments and attorney's fee awards, thereby protecting
    2
    70536215vl 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    taxpayers and government from judgments other than those designed to compensate an injured party for
    an actual injury.
    See e.g. Yang v. City of Chicago,
    195 li1.2d 96, 104 (2001). The Tort Immunity Act
    evidences the General
    Assembly's determination that such limitations onjudgments against units ofloeal
    government serve the ends ofjustice.
    8.
    Finally, the State's assertion that it will
    be prejudiced and "punished" if the Board grants
    leave for the City
    to file its Amended Affirmative Defenses is completely and totally inconsistent with the
    State's simultaneous assertion that the proposed defenses are irrelevant
    to the issues under consideration
    at the upcoming hearing.
    WHEREFORE, for the reasons set forth above, the City respectfully requests that the Board grant
    Dated:
    Charles F.
    Helsten
    Hinshaw
    &
    Culbertson LLP
    100 Park Avenue
    P.O. Box 1389
    Rockford,
    IL 61105-1389
    815-490-4900
    ative Defenses.
    This document utilized 100% recycled paper products.
    3
    70536215vl 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007
    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 September 10, 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,
    II..
    60601
    Mr. John T. Theniault, Assistant Clerk
    Bradley Halloran
    lllinois Pollution Control Board
    Hearing Officer
    100
    W. Randolph, Suite 11-500
    Illinois Pollution Control Board
    Chicago, IL 60601
    100
    W. Randolph, Suite 11-500
    (via electronic filing)
    Chicago,
    II..
    60601
    Mr. Scott Belt
    Jennifer A. Tomas
    Scott M. Belt
    &
    Associates,
    P
    .C.
    Assistant Attorney General
    105 East Main Street
    Environmental Bureau
    Suite 206
    69 W. Washington Street, Suite 1800
    Monis,
    II..
    60450
    Chicago,
    IL 60602
    ViaE-Mail.
    HINSHAW
    &
    CULBERTSON
    100 Park Avenue
    P.O. Box 1389
    Rockford, IL 61105-1389
    (815) 490-4900
    704 I5200v1 806289
    Electronic Filing, Received, Clerk's Office, September 10, 2007

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