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 COMPLAINANT'S MOTION
TO STRIKE OR DISMISS THE AFFIDAVIT OF THE CITY OF MORRIS' MAYOR,
RICHARD KOPCZICK, 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
BY~~
ifer
A.
omas
1~t1S
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20
th
Floor
Chicago, Illinois 60601
(312) 814-0609
DATE: October
12,2007
TillS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, October 12, 2007
Richard Porter
Charles
F. Helsten
Hinshaw
&
Culbertson, LLP
100 Park Avenue
Rockford, Illinois 61105
Mark LaRose
Clarissa
C. Grayson
LaRose
&
Bosco, Ltd.
200
N. LaSalle Street, Ste. 2810
Chicago, Illinois 60610
SERVICE LIST
Electronic Filing, Received, Clerk's Office, October 12, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL'BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
)
)
COMMUNITY LANDFILL COMPANY, INC.,
)
an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
)
)
Respondents.
)
PCB No. 03-191
(Enforcement-Land)
COMPLAINANT'S MOTION TO STRIKE
OR DISMISS THE AFFIDAVIT OF THE
CITY OF MORRIS' MAYOR, RICHARD KOPCZICK
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
General
ofthe State of Illinois, pursuant to Section 101.500 of the Board'sProcedural
Regulations, now moves for an order striking or dismissing the affidavit of the City of Morris'
Mayor, Richard Kopczick, as public comment. In support of its motion, Complainant states as
follows:
I.
BACKGROUND
1. On September 10, 11 and 12,2007, a hearing was held in the above-captioned matter
in Morris, Grundy County" Illinois, for Respondents' alleged violations
of Section 21 (d)(2) of the
Illinois Environmental Protection Act
("Act"), 415 ILCS
5121(d)(2)
(2002), and Sections
811.700(f) and 811.712 of the Board'sFinancial Assurance Regulations, 35 Ill. Adm. Code
811.700(f) and 811.712.
2. On October 5, 2007, the Hearing Officer, Bradley Halloran, issued his Hearing Report
for the hearing held on September 10,
11 and 12. Included in the Hearing Report was a public
comment deadline
of October 9,2007.
Electronic Filing, Received, Clerk's Office, October 12, 2007
3.
OnOctober 8, 2007, Respondent, City of Morris, mailed to be filed with the
Board the affidavit
of the City of Morris' Mayor, Richard Kopczick, as public comment.
II.
BOARD GENERAL RULES FOR PUBLIC COMMENT
4.
Section 101.628 of the Board General Rules, 35 Ill. Adm. Code 101.628, provides
as follows:
Statements from Participants
a)
Oral Statements. The hearing officer
may permit a participant to make oral
statements on the record when time, facilities, and concerns for a clear and
concise hearing record so allow. The oral statements must be made under
oath and are subj ect to cross-examination. (See Sections 101.110 and
101.114
of this Part.)
b)
Written Statements. Any participant
may submit written statements
relevant to the subject matter at any time prior to hearing
or at hearing.
Participants submitting such a statement will be subject to cross-
examination
by any party. Written statements submitted without the
availability of cross-examination will be treated as public comment in
accordance with subsection (c)
of this Section and will be afforded lesser
weight than evidence subject to cross-examination.
c)
Public Comments or Amicus Curiae Briefs. Participants may file public
comments subject to the requirements of this Section and the hearing
officer's schedule for completion
of the record. The Board also allows for
the filing
of amicus curiae briefs by non-party participants. Amicus curiae
briefs will be allowed in accordance with Section 101.110
of this Part.
1)
Public comments must be filed within 14 days after the close of the
last hearing unless the hearing officer specifies a different date for
submission
of post-hearing comments. However, all public
comments must be filed with the Board no later than 30 days
before the decision date, unless the hearing officer orders
otherwise to prevent material prejudice. Consistent with the burden
of proof in a proceeding, the hearing officer may provide for
differing filing deadlines with respect to post-hearing comments
by
different persons. Pursuant to hearing officer order, rebuttal public
comments
may be submitted.
2)
All public comments must present arguments
or comments based
on evidence contained in the record. The comments may also
present legal argument citing legal authorities.
2
Electronic Filing, Received, Clerk's Office, October 12, 2007
3)
Comments must be filed with the Board. Comments will be
distributed
to parties and the hearing officer by the Clerk's office.
5.
Section 101.202 of the Board General Rules, 35
Ill.
Adm. Code 101.202,
provides, in pertinent part, the f9llowing definitions:
"Participant" means any person, not including the Board or its staff, who takes
part in an adjudicatory proceeding who
is not a party, or a person who takes part
in a regulatory
or other quasi-legislative proceeding before the Board. A person
becomes a participant in any
of several ways, including filing a comment, being
added
to the notice list of a particular proceeding, or testifying at hearing.
"Party" means the person by or against whom a proceeding is brought.
"Person" means any individual, partnership, co-partnership, firm, company,
limited liability company, corporation, association, joint stock company, trust,
estate, political subdivision, state agency, or any other legal entity, or their legal
representative, agent or assigns. [415 ILCS 5/3.315]
III.
MAYOR RICHARD KOPCZICK IS A PARTY TO THIS PROCEEDING AND
THEREFORE CANNOT SUBMIT PUBLIC COMMENT
6.
The Board General Rules very clearly layout who may submit public comment
and what the content
of that public comment can include.
7.
Section 101.628(c) of the Board General Rules, 35 Ill. Adm. Code 101.628(b),
provides that a "participant" may file public comments by a deadline provided by the hearing
officer. The definition
of "participant" is "any person ...who is not a party". 35
Ill.
Adm. Code
101.202. The Board'sdefinition
of "person" includes the "legal representative, agent or assigns"
of a "political subdivision".
!d.
Finally, the Board'sdefinition of "party" means "the person by
or against whom a proceeding is brought".
!d.
8.
As Mayor of the City of Morris, Mayor Kopczick is an agent ofthe City of Morris
and therefore a "person" pursuant to the Board's General Rules. As an agent
of the City of
Morris, Mayor Kopczick is a "party" to this action. As a party to this proceeding, Mayor
3
Electronic Filing, Received, Clerk's Office, October 12, 2007
Kopczick does not meet the definition of "participant" and therefore cannot submit public
comment. See
American Bottom Conservancy, et al. v. Village ofFairmont City, et aI.,
PCB No.
01-159, p. 7 (2001 )("Petitioners cannot file public comments because. they are a party to the
proceeding. Public comments are reserved for members
of the public that are not a party, who
wish to submit information concerning the proceeding.")(citing 35 Ill. Adm. Code
~01.202,
101.628(c).)
IV.
IN THE ALTERNATIVE, IF THE BOARD DOES FIND THAT MAYOR
KOPCZICK'S AFFIDAVIT IS APPROPRIATE PUBLIC COMMENT, HIS
AFFIDAVIT PRESENTS ARGUMENTS AND COMMENTS OUTSIDE
EVIDENCE CONTAINED IN THE RECORD
9.
Section 101.628(c)(2) of the Board'sGeneral Rules, 35 Ill. Adm. Code
101.628(c)(2), provides as follows:
2)
All public comments must present arguments
or comments based on
evidence contained in the record. The comments may also present legal
argument citing legal authorities.
10.
No arguments or comments in Mayor Kopczick's affidavit make reference to the
record
of this proceeding or present legal argument citing legal authorities. In fact, the affidavit
seems only to attempt to explain the transfer
of an operation and development permit that
occurred between the City
of Morris and Community Landfill Co. ("CLC") in 1982 and the
intent behind City Council Resolution No. R-99-6. Neither
of these issues were part of the
record created at the hearing
of this action nor present a legal argument with citing authorities.
V.
CONCLUSION
11.
Complainant requests that the Board see Mayor Kopczick's affidavit for what it is
- an inappropriate attempt
by Respondent City of Morris to interject improper comment into this
proceeding without affording the Complainant the right to cross-examine Mayor Kopczick
on his
statements. As Mayor
ofthe City of Morris, Mayor Kopczick is a party to this proceeding and
4
Electronic Filing, Received, Clerk's Office, October 12, 2007
not a "participant" who may legally submit public comment. In the alternative, if Mayor
Kopczick's affidavit is deemed appropriate public comment, it still must fail because the
affidavit presents no argument or comment relevant to the record or legal argument citing legal
authority.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby requests
that the Board Strike or Dismiss the Affidavit
of Mayor Richard Kopczick for the reasons stated
above.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN, Attorney General
State
of Illinois
BY:~~T~
IFERA. OMAS
CHRISTOPHER GRANT
Assistant Attorneys General
Environmental Bureau
69 W. Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-0609
(312) 814-5388
Dated: October
12,2007
5
Electronic Filing, Received, Clerk's Office, October 12, 2007
.-
J
CERTIFICATE OF SERVICE
I, JENNIFER A. TOMAS, an Assistant Attorney General, certify that I caused to be
served by First Class United States Mail, the foregoing Notice of Filing and Complainant's
Motion to Strike
or Dismiss the Affidavit of the City of Morris' Mayor, Richard Kopczick, to the
parties named
on the attached
s~rvice
list, by depositing same in postage prepaid envelopes with
the United States Postal Service located at 100 West Randolph Street, Chicago, Illinois 60601 on
October 12, 2007.
~*Mmas
JE IFER . TOMAS
Electronic Filing, Received, Clerk's Office, October 12, 2007