BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
-vs-
)
)
)
EDW ARD PRUIM, an individual, and
)
ROBERT PRUIM, an individual,
)
)
Respondents.
)
------------------------------)
)
)
PEOPLE OF THE STATE OF ILLINOIS,
)
by
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
-vs-
)
)
COMMUNITY LANDFILL COMPANY, INC.,
)
)
Respondent.
)
PCB No. 04-207
PCB No. 97-193
(Consolidated)
(Enforcement)
to: Mr. Mark La Rose, La Rose
&
Bosco
. 200
N. La Salle Street, #2810
Chicago,
IL 60601
Mr. Bradley
P. Halloran
Hearing Officer
Ms. Clarissa Cutler, Attorney at Law
155 N. Michigan, Suite 375
Chicago,
IL 60601
Illinois Pollution Control Board
100
W. Randolph, #2001
Chicago,
IL 60601
NOTICE OF ELECTRONIC FILING
PLEASE TAKE NOTICE that we have today, February 6, 2009, filed with the Office of
the Clerk of the Illinois Pollution Control Board, by electronic filing, Complainant's Closing
Argument and Post Hearing Brief, a copy
of which is attached and herewith served upon you.
BY:
PEOPLE OF THE STATE OF ILLINOIS
ex reI.
LISA MADIGAN
Attorney General
of the
St e
of Illinois
Assistant Attorney General
Environmental Bureau
69
W. Washington St., #1800
Chicago,
IL 60602
(312) 814-5388
Electronic Filing - Received, Clerk's Office, February 6, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
-vs-
)
)
)
EDW ARD PRUIM, an individual, and
)
ROBERT PRUIM, an individual,
)
)
Respondents.
)
)
)
)
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
-vs-
)
)
Community Landfill Company, Inc.
)
)
Respondent.
)
)
)
)
PCB No. 04-207
PCB No. 97-193
(Consolidated)
(Enforcement-Land)
COMPLAINANT'S CLOSING ARGUMENT AND POST-HEARING BRIEF
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, and hereby presents its Closing Argument
and Post-Hearing Brief
l
IThe State's Closing Argument and Post Hearing Brief relies on prior rulings in this case,
facts established in summary judgment, matters
of which the Board is entitled to take notice, and
Electronic Filing - Received, Clerk's Office, February 6, 2009
I.
INTRODUCTION
This consolidated matter involves two separate enforcement cases related to the Morris
Community Landfill ("Landfill")which were consolidated by the Board on February
17,2005.
The relevant pleadings are the Second Amended Complaint in Case No. 97-193 and the original
Complaint in Case No. PCB 04-207. A review
of the consolidated actions will be helpful in
understanding the issues which remained for hearing.
a. Consolidated Cases
PCB No. 97-193
The Second Amended Complaint was filed against Community Landfill Company
("CLC") on November 24, 1999 as part
of State's Motion for Leave to Amend. The Board
denied Community Landfill
Company's ("CLC's") Motion to Dismiss the Second Amended
Complaint on March
16,2000. On April 5, 2001, the Board granted summary judgment to the
State on Count
V. On August 23,2001, the Board granted summary judgment to.CLC on Count
XII. On October
3,2002, the Board entered summary judgment for the State on Counts III, IV,
VII, VIII, IX, X, XIII, XIV, XVI, XIX (partial), and XXI. The Board dismissed Counts XI,
XVIII, and XXII.
Therefore, related to PCB 97-193, the December
2-4,2009 hearing was for the purpose of
eliciting evidence on penalty for all
remain~ng
counts, and for a determination of CLC's liability
on Counts
I, II, VI, XV, XVII, and XX.
PCB No. 04-207
The Complaint in this case was filed on May 21, 2004 against Edward Pruim and Robert
the record made during the December 2-4, 2008 hearing.
2
Pruim, the sole owners and shareholders ofCLC. The Board denied the Pruims' Motion to
Dismiss on November
4,2004, but dismissed Count XI on agreement of the parties. On April
20,2006, the Board denied the Pruims' Motion for Summary Judgment, and granted the State's
request to voluntarily dismiss Counts XIII, XIV, XV, XVI, and XVIII in PCB 04-207.
Therefore, related to PCB 04-207, the December
2-4,2009 hearing was for the purpose of
eliciting evidence on penalty and liability for the Pruims on Counts I, II, III, IV, V, VI, VII, VIII,
IX, X, XII, XVII, and XIX
of the Compliant in PCB 04-207.
2.
Complainant's Offer of Proof
Complainant has appealed an evidentiary ruling by the Hearing Officer excluding
.. certified records from
United States
v.
Edward PruimlRobert Pruim,
93 CR 682. The
documents were entered into evidence
as an Offer of Proof in Complainant's case in chief as
proposed Exhibit 27. Complainant believes that the excluded information, and the arguments
made
in its Appeal of Hearing Officer ruling, show that the information is highly relevant on the
issue
of the personal liability of Edward and Robert Pruim for the alleged violations.
3.
Organization of Complainant's Post-Hearing Brief
Complainant has organized this Brief by related violations. The various counts in the
two complaints are not sequential (i.e.
I, II, III), but rather by violations which are supported by
related facts. Thus, all Counts related to overcapacity, excessive dumping, and overheight at the
.Landfill are argued together in Section
IV. However, the requests for finding of violation in
.
2Complainant originally intended to use Exhibit 27, if at all, in its case in rebuttal. As a
result
of the Hearing Officer ruling on Motion in Limine No.1, Complainant was unable to
question Edward and Robert Pruim on the excluded subject matter. Complainant therefore
entered them under offer
of proof in its case in chief.
3
Section XI are handled sequentially to the extent possible. In its request for penalty,
Complainant refers to the 33(c) and 42(h) factors, but does not request specific penalty amounts
by Count.
II.
RELIEF SOUGHT BY COMPLAINANT
Complainant requests that the Board assess a Civil Penalty against Respondents, Edward
Pruim, Robert Pruim, and Community Landfill Company jointly and severally, in the amount
of
Two Hundred Fifty Thousand Dollars ($250,000.00).
III.
EDWARD AND ROBERT PRUIM ARE INDIVIDUALLY LIABLE FOR THE
VIOLATIONS ALLEGED IN CASE NO. PCB 04-207
The Illinois Environmental Protection Act CAct"), 415 ILCS 511
et seq.,
does not limit
liability for violations to corporations or other business organizations.
In fact, the opposite is the
case: the Act expressly includes 'individual[s], in describing 'person[s]' who are subject to the
provisions and prohibitions within the Ace. The General Assembly also has directed that the
terms and provisions
of the Act be " .. .liberally construed so as to effectuate the purposes of this
Act..
.. "4 to " ... ensure that adverse effects upon the environment are fully considered and borne
by those who cause them.,,5 In the two Complaints consolidated into this matter, Complainant
alleges similar or identical violations against CLC and against Edward
Pruim and Robert Pruim,
3 Section 3.315 of the Act, 415 ILCS
5/3.315
(2006) provides as follows:
"Person" is 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 or assigns.
4415 ILCS
5/2(c)(2006)
5415 ILCS
5/2(b )(2006)
4
Electronic Filing - Received, Clerk's Office, February 6, 2009
individually. As "persons" (and, for some violations, as Landfill "operators"), the Pruims are
liable for their individual violations.
a.
Standard for
Per~onal
Liability under the Act
In their Motions for Summary Judgment, the Pruims claimed that they could not be held
individually liable for the violations
6
•
However, it is clear that they may be held liable for their
personal and direct actions which constitute violations
of the Act. The mere existence of a
separate corporate entity does not automatically provide a defense to the violations alleged
against them in Case No. PCB 04-107.
There are three reported Illinois Appellate Court cases which address individual liability
under the Act under circumstances where Defendants were claiming protection under a
'corporate shield'.
Of these cases, only
People ex reI. Ryan
v.
Agpro Inc.
&
David Schulte,
Individually and as President
of Agpro,
345 Ill. App. 3d 1011 (2nd Dist. 2004), was decided after
a full evidentiary hearing. However, in all three cases, the Appellate Court found that individual
liability for violations could be found despite the existence
of a separate corporate entity.
In
Agpro,
the Appellate Court affirmed a finding of the liability of David Schulte, the
corporate officer Defendant. The Court recognized that individual liability could be found based
on an individual's personal involvement or actual participation in the violations. 345 Ill. App.
3d
10 11, 1018. However, the Court also held that it was
not required
for an officer to physically
commit the violations to be held liable, stating:
This "personal involvement" or "active participation" does not, as defendants seem to
suggest, mean that the corporate officer has to perform the actual physical act that
60
n April 20, 2006, the Board denied the Pruims' Motions for summary judgment, but
indicated that they would again consider the issue
of individual liability after hearing.
5
constitutes a violation in order to be held individually liable.
345 Ill. App. 3d, at 1018
Rather the
Agpro
court adopted the rationale that liability could be found where the
officer was personally responsible for all of the corporations operations, and had the ultimate
authority for disposal activities.
Agpro,
345 Ill. App.3d 1011, 1019 (following
United States
v.
Northeastern Pharmaceutical
&
Chemical Co., 810 F.2d
726
(8
th
Cir. 1986)).
Two other Illinois Appellate Court cases address individual liability under the Act:
People ex reI. Burris
v.
CJR. Processing, Inc.,
269 Ill. App.3d 1013 (3d Dist. 1995), and
People
ex reI. Madigan
v.
Tang,
346 Ill. App.3d 277 (151 Dist. 2004)7. In both cases the Court found that
. corporate officers
can
be held responsible for their "personal involvement or active participation"
in violations
of the Act. In
CJR.
the Court held that the State had properly alleged "personal
involvement or active participation" by simply alleging that the individual defendant 'caused or
allowed' the violations. 269 Ill. App. 3d 1013, 1018. In
Tang,
the Court stated that the State
must allege facts establishing that the corporate officer had personal involvement or active
participation in the acts resulting in liability, not
just that he had personal involvement or active
participation in the management
of the corporation. 346 Ill. App. 3d 277, 289.
Complainant believes that the Board should look to the
CJ R.
and
Agpro
cases for
guidance on this issue, as these cases more accurately apply the
Act's stated policy of holding
those actually responsible liable for violations8. However, Complainant presented overwhelming
7
In neither case had an evidentiary hearing been held when the Appellate Court issued
their opinions, and both involved motions to dismiss by Defendants.
8Complainant also notes that pursuant to Section
41 of the Act, 415 ILCS 5/41 (2006),
any appeal
of the Board's decision in this matter will be to the Appellate Court, 3d District,
where the decision in
CJ R.
controls.
6
- ---------------------------------------------.....
evidence of personal and direct involvement in the violations by Edward Pruim and Robert
Pruim at hearing. The evidence is sufficient to meet the individual liability standard desc'ribed
in all three
of the Illinois cases.
b.
The Responsible Corporate Officer Doctrine
The individual Respondents in this case are the sole officers of Community Landfill
Companl. The Board should also consider finding personal liability for the alleged violations
pursuant to the
'Responsible Corporate Officer' theory ofliability.
The Responsible Corporate Officer doctrine imposes individual liability on a corporate
officer with the responsibility and authority to ensure compliance
when that officer fails to
proactively prevent violations
of public welfare statutes.
United States v. Park,
421 U.S. 658,
675,95 S.Ct. 1903, 1913,44 L.Ed.2d 489,502-03 (1975);
United States v. Dotterweich,
320 U.S.
277,281-84,64 S.Ct. 134, 137-38,88 L.Ed. 48 (1943). The Responsible Corporate Officer
doctrine differs from the concept
of
direct
liability, because it does
not
require personal
involvement
of the corporate officer.
The Responsible Corporate Officer Doctrine has been applied to find officer liability in
environmental cases in several states.
See Comm'r, lnd. Dep't of Envtl. Mgmt. v. RLG, Inc., 755
N .E.2d 556 (Ind. 2001);
BEC Corp. v. Department of Environmental Protection,
775 A.2d 928
(Conn. 2001);
Slale of Washington Dep't of Ecology v. Lundgren,
94 Wash.App. 236, 971 P.2d
948 (Wash.App. 1999)
State of Minnesota v. Modern Recycling, Inc.,
558 N.W.2d 770
(Minn.App. 1997). Because the Doctrine focuses
on the' ability to control' a facility to prevent
9 As shown herein, Edward Pruim and Robert Pruim were also the sole owners of CLC
during the entire relevant period.
7
Electronic Filing - Received, Clerk's Office, February 6, 2009
environmental violations, it acts in harmony with the theories of liability described in
CJ R.
and
Agpro.
The Board may wish to adopt the Responsible Corporate Officer Doctrine to find
individual liability in this matter.
c.
Edward and Robert Pruim were Personally and Directly Involved with All Phases of
Operation of Landfill.
The evidence introduced at hearing proves that individual Respondents Edward and
Robert Pruim were heavily involved in the operation
of the waste disposal business at the Morris
Community Landfill. The evidence also shows that they were personally and directly involved
in the acts that lead to many
of the violations, including violations of the Act that have already
been determined by the Board.
a.
Ownership
&
Control
At all times relevant to this case, Edward Pruim and Robert Pruim were the sole owners
of Community Landfill Company 10. During the period 1993 through 2000, they were also the
sole officers
of Community Landfill Companyll.
b.
Authority over all Landfill Operations
As testified to by James Pelnarsh, Morris-based CLC Site manager for the past
25 years,
the main Office for CLC was never at the Landfill itself.
It
was located at various times in
Crestwood or Riverdale, Illinois
l2
. CLC's financial affairs, such as writing checks, paying bills
and establishing credit for dumping customers was done out
of the main office, not at the
IOEdward Pruim Answer, p. 2; Robert Pruim Answer, p.2; Tr.
12/4/08,
p. 35
IITr.
12/4/08,
p. 36
12Tr.
12/4/08,
pp.13-14
8
Landfill. All, or virtually all, of the Landfill's business was done on credit
13
•
Records of dumping volumes and copies of permits were not kept at the Landfill itself
but at the main office
'4
. Mr. Pelnarsh was not familiar the details of the Landfill's waste disposal
permits
'5
.
Site Manager James Pelnarsh did not have the authority close down the Landfill 16. He
stated that closing the Landfill would have required the approval
of "Bob or Ed or the IEPA"I7.
b.
Personal Involvement in CLC Finances
At all times relevant to this case, Edward Pruim and Robert Pruim were the only persons
authorized to sign checks on behalf
of Community Landfill Company 18. They provided personal
guarantees
of CLC Landfill dumping royalties to the City of Morris, the Landfill's ownerl9. In
addition, they provided personal guarantees for CLC loans, and personal guarantees to Frontier
Insurance Company for the Landfill's financial assurance
20
. As the sole officers ofCLC, only
Robert and Edward Pruim had the authority to increase the amount
of financial assurance for the
Landfill
21
.
'3Tr.12/4/09,p.14
14Tr.,
12/4/08,
pp.14-16
'5Id.
16Tr.
12/4/08,
p.25
'7Id.
18Tr.
12/4/08,
p.73
19Tr.,
12/4/08,
p.41
2°Id.
21Tr.
12/4/08,
p. 73-74
9
c.
Permitting
Andrews Environmental Engineering Company ("Andrews") was the engineering
consultant to CLC during the relevant
period~
and was authorized to file permit applications on
its behalf-2. Robert Pruim had worked with Andrews since the
1970's23.
Either Robert Pruim or Edward Pruim signed the Permit applications relevant to this
matter on behalf
of Community Landfill Company24. Permits and permit correspondence were
mailed to 4330 West 137
th
Place in Crestwood, Illinois, not to the Landfill in Morris, Illinois.
Morris-based Site Manager James Pelnarsh testified that he was not responsible for permit
applications, and did not read permit applications before they were submitted
25
.
d.
Reporting
Either Edward Pruim or Robert Pruim signed and certified all landfill capacity
certifications relevant to this case
26
.
e.
Related Company Transactions
Edward and Robert Pruim owned Excel Disposal, a waste transfer station with offices in
at 4330 West
13t
h
Place in Crestwood, Illinois. This is the same address as the Office listed for
Community Landfill Company in numerous permit applications and correspondence
27. The
22Tr.
12/4/08,
p.44
23Id.
24See,
e.g. Complainant's Exhibits l(a), l(d)
25Tr.
12/4/08,
p. 16
26Complainant's Exhibits 14(c) through 14(f)
27See: e.g Complainant's Exhibit 1 (a), p. 8
10
Electronic Filing - Received, Clerk's Office, February 6, 2009
office building was owned by Edward Pruim
28
. The main office for Community Landfill
Company was never located at the Landfill
itself
9
•
Excel Disposal was a waste hauling and transfer station business, which, at least in part,
disposed
of waste at the Morris Community Landfill
30
.
At various times, Robert Pruim had involvement with other waste related businesses,
including Crest Disposal, Industrial Fuels, Will-Cook Waste, and Waste Systems. These Offices
for
thesecompanies were the same as that of Community Landfill Compan/
1
•
IV.
COUNTS VII-X: CLC AND THE PRUIMS ARE JOINTLY LIABLE FOR
OVERHEIGHT VIOLATIONS AT THE LANDFILL (PCB 97-193, Count VII-X;
PCB 04-207 Counts VII-X)
a.
The Liability of CLC has Already Been Established
On October 3,2002, the Board granted summary judgment against CLC on Counts VII,
VIII,
IX and X, and found CLC in violation of Sections 21 (0 )(9)(Count VII), 21 (d)(l) (Counts
VIII
&
X) and 21 ( a) (Count IX) of the Act.
b.
The Evidence Proves the Personal and Direct Involvement of Edward
&
Robert
Pruim in the Violations Alleged in Counts VII-X (Case No. PCB 04-207)
As noted above, only Edward or Robert Pruim had the authority to shut down Landfill
operations once Parcel B
of the Landfill was filled to capacity. Yet the record indicates that the
Pruim's continued to allow waste disposal at Parcel B despite knowing that the Landfill was
28Tr.
12/4/08,
p.
37
29Tr.
12/4/08,
p. 13
30Tr.
12/4/08,
p. 71; see also, Complainant's Exhibit 26, reference to "XL Loads", which
may reasonably be inferred to refer to loads disposed at the Landfill by Excel Disposal during
1994.
31Tr.
12/4/08,
pp. 36-37
11
Electronic Filing - Received, Clerk's Office, February 6, 2009
approaching its maximum permitted elevation, and continued to allow dumping after
acknowledging to Illinois EPA that it was, in fact, overfilled.
As testified to by Illinois EPA representative Ellen Robinson, landfill operators are
required by regulation to submit annual Landfill Capacity Certifications to Illinois EPA
32
•
The
regulations require statements
of existing waste disposal capacity of a landfill at the beginning of
the designated year, the amount of waste deposited during that year, and the end of year
remaining waste disposal capacity. In our case, the Landfill Capacity Certifications submitted by
Edward and Robert Pruim show that they knowingly and intentionally allowed the Landfill to
exceed its permitted capacity.
1.
The 1995 Landfill Capacity Report Admits Overcapacity
The 1995 Landfill Capacity Report proves that Parcel B of the Landfill was rapidly
approaching its permitted capacity in early 1994
33
. Page 4 of Exhibit 14(d) (report page no. 3)
shows that on April
1, 1994, only 264,290 cubic yards of capacity remained. However, the next
line (V.b) shows that between April
1, 1994, and December 31, 1994, the Respondents caused
and allowed 457,008 cubic yards to be deposited, at least 192,718 cubic yards more than the
permitted capacity. On the next line it indicates that the Landfill has zero remaining capacity
and zero remaining years
of disposal. The report is signed by Edward Pruim, under the
statement:
/ hereby affirm that all information contained ill this "Solid Waste Landfill Capacity
Certification is true and accutate
to the best of my knowledge and belieJ"
32Tr., 12/3/08, pp 6-7
33Complainant's Exhibit 14(d). Note, the Certifications are prepared at the beginning
of
the following calendar year. Therefore, the" 1995 Landfill Capacity Certification" reports
activity for the prior year, i.e. dumping activity during 1994.
12
------------------------------------------------------------------------------------------,
Beneath Edward Pruim's signature is the signature and professional engineer stamp of
James Douglas Andrews, under the statement:
/ hereby affirm the capacity estimates have been prepared by, or under the supervision of,
a professional engineer and that all information contained
in this "Solid Waste Landfill
Capacity Certification" is true and accurate
to the best of my knowledge and belief".
2.
City of Morris Landfill Records Prove That the Landfill
Reached Capacity
in August 1994
Landfill records made and ke'pt by the City
of Morris indicate exactly when the Landfill
reached and exceeded capacity. As testified to by City Clerk John Enger, Community Landfill
Company provided City Engineer Chamlin
&
Associates with daily dumping volume records,
which were then compiled into a report for the City
of Morris.
Complainant's Exhibit
29 is a
copy
of the City of Morris' reports from 1994.
As reported and certified to Illinois EPA by Edward Pruim, as
of April 1, 1994 only
264,290 cubic yards
of capacity had remained available for waste disposal. The City of Morris
Records show that between April
1, 1994 and August 31, 1994, the Respondents caused and
allowed 270,588 cubic yards
of waste to be deposited into the Landfi1l
35
. Therefore, the
evidence shows that as
of August 31, 1994, Parcel B of the Landfill was completely full.
However, Edward and Robert Pruim did not close Parcel B to waste disposal, or stop dumping at
the Landfill. Exhibit 29 shows that 59,858 cubic yards were dumped in September, 54,974 cubic
yards were dumped in October, 44,233 cubic yards in November, and 27,351 cubic yards in
December, 1994. Total dumping between September
1, 1994 and the end of the year amounts to
34Complainant's Exhibit 14(d),
p.5 (report page no. 4)
35 Complainant's Exhibit 29. Volumes in cubic yards by month show April: 43,870;
May: 50,078; June 47,674; July 63,812; August 65,154
13
Electronic Filing - Received, Clerk's Office, February 6, 2009
186,416 cubic yards, very close to the 192,718 cubic yard exceedance predicted by the figures in
the 1995 Landfill Capacity Certification.
3.
The 1996 Landfill Capacity Certification Proves Knowing and Intentional
Continued Violations
Despite having reported zero capacity to Illinois EPA in its 1995 report (covering 1994
dumping activity), and despite the dumping records created by the Respondents which clearly
indicated almost
200,000 cubic yards
of overcapacity, Edward and Robert Pruim did not shut
down the Landfill. Instead, they continued to operate in flagrant violation
of their permits and
the Act.
The 1996 Landfill Capacity Certification proves both the violations and the personal
involvement
of Edward and Robert. Pruim. The January 1, 1996 Landfill Capacity Certification
J6
covered dumping activity from January 1, 1995 through December 31, 1995
37
. The Respondents
report that during this period, they had disposed
of 540,135 cubic yards of waste, and that zero
capacity remained
38
. The report is signed and certified by Robert Pruim, his signature also
certifying that the information is true and correct, and stamped by registered professional
engineer James Douglas Andrews
39
.
Thus, the 1995 and 1996 Landfill Capacity Certifications show that both Edward and
Robert Pruim knew
of the overcapacity dumping at the Landfill, and failed to either stop
36Complainant's Exhibit 14(e)
37Note that the 1995 report was an April-December reporting period. For 1995 activity,
the Agency shifted to a Calendar year period.
38Exhibit 14(e),
Section V, p. 4
39Exhibit 14( e),
p. 5
14
Electronic Filing - Received, Clerk's Office, February 6, 2009
dumping or close the Landfill. The City of Morris dumping records show that this condition
existed from at least August, 1994.
4.
1996 and 1997 Permit Submissions Confirm Excess Waste Deposit and
Overheight Violations
In 1989, the Respondents submitted their application for vertical expansion of the
Landfi1l
40
•
In their application; the Respondents specified the maximum final elevation of the
Landfill as 580' above mean sea level ("MSL,,)41. The application
was signed by Edward
Pruim
42
. Illinois EPA subsequently granted Supplemental' Permit No. 1989-005-SP, granting the
Respondents' application and incorporating all
of the conditions in the application itself3.
On August 5, 1996, the Respondents submitted their Significant Modification ("Sig-
Mod") application to Illinois
EPA 44.
The application is signed by Robert Pruim, whose
signature also certified the truth and accuracy
of the information provided
45
. The application
includes a diagram
of the conditions existing at the Landfill at the time the application was
submitted, prepared by Andrews Engineering46. This "existing conditions" survey shows a large
area on the top
of the Landfill which exceeds 580' in elevation, a clear violation of the permitted
4°Complainant's Exhibit
l(a)
4IId., p. 20. Note that this final elevation included installation of final cover and a
vegetative layer. The maximum elevation for waste disposal would therefor have to be less than
580' MSL
42Id., p.8. By his signature, Edward Pruim also attested to the accuracy of the submitted
information, including information regarding final elevation.
43Complainant's Exhibit 2(a),
p.1
44Complainant's Exhibit l(e)
45Id., p. 3
46Id., p. 6. The survey was drawn "8-96".
15
Electronic Filing - Received, Clerk's Office, February 6, 2009
elevation for the Site
47
On April 30, 1997, the Respondents submitted an Addendum to the August 5, 1996
SigMod application ("Addendum"), providing additional details regarding the exceedance
of the
maximum permitted elevation. Significantly, the Addendum provides:
Presently the amount of waste ident(fied as overheight based upon the jlyover
topographic survey contours taken in July,
1996
to the permitted waste height is on the
order
of 440, 000 cubic yards. Waste receipts since the topographic survey date of July
total
35,
000 cubic yards. Therefore a total of
475,
000 cubic yards may require disposal
in a permitted landfill is
[sic]
siting approval is not secured'ii.
The Addendum was provided approximately 2 112 years after Parcel B of the Landfill
reached capacity. The admissions in the Addendum confirm the previously-reported excessive
dumping, and also reveal the unwillingness
of Edward and Robert Pruim to comply with either
their waste disposal permits or the Act. The Addendum also admits that
in July 1996, the
Respondents' engineers had confirmed 440,000 cubic yards above 580 feet. Despite this
revelations, the Landfill continued to accept another 35,000 cubic yards
ofwaste
4
<J.
5.
Robert Pruim's Denials are not Credible
Incredibly, despite twice reporting to Illinois EPA that the Landfill had no remaining
waste disposal capacity, and despite the subsequent identification
of at least 475,00 cubic yards
of overheight by licensed professional engineers retained by the Pruims, at hearing Robert Pruim
denied that the Landfill was ever overheight. He claimed that Mr. Vince Medonia, a
representative
of Andrews advised him that it was a "mathematics issue" which would be
47Id., p.20
48Complainant's Exhibit let), p.17 (marked
p.ll at bottom of page). The Addendum was
also prepared by Andrews Environmental Engineering.
16
corrected later on
so
. He also claimed Mr. Medonia said he would correct the problem " ... when
they submitted the SIGMOD
or something with Part A, combining the two"SI. He also claimed
that Complainant's Exhibit 14(f) supported that position, showing waste disposal capacity
of
approximately 1. 7 MM cubic yards proves the adjustment to the mathematical errorS
2
•
None of these incredible claims should be given any consideration whatsoever. Mr.
Pruim is merely blaming someone
'not in the room' for his own admissions of violation. First,
the Pruims did not call Vince Medonia as a witness at this hearings, and all
of his statements are
pure hearsay. Essentially, Robert Pruim asks that you believe that Mr. Medonia convinced him to
falsify the 1994 and 1995 Landfill Capacity Certifications, and also arranged for James Douglas
Andrews to falsely certify the documents with his engineer stamp.
Second, Robert
Pruim completely misrepresents the Landfill's 1997 Landfill Capacity
Certification. Prior to 1996, dumping occurred only in Parcel B
of the Landfill, which is
permitted separately from Parcel
A. Pursuant to the 1996 SigMod Permit application, the
Respondents opened up additional capacity in Parcel A (which is across Ashley Road from
Parcel B), and then filed a Landfill Capacity Certification covering capacity for
both
parcels.
Complainant directs the Board to the cover page for the January
1, 1997 Landfill Capacity
Certification
s3
, which plainly states:
Please Note that this certification now includes volume Ji'om Parcel A, for which
Community Landfill Company received a permit transferring operator status from
sOTr.
12/4/08,
p. 48.
slTr.
12/4/08,
p. 49
S3Exhibit 14(f),
p.l
17
the City of Morris to Community Landfill Company.
The previous years Landfill Capacity Certification showed zero remaining capacity 54 (as
argued herein, it was actually well above capacity). To add in all of the capacity of Parcel A, and
argue that this acted as a 'mathematical correction' to previous reports on Parcel B only is a
blatant misrepresentation and an insult to the intelligence
of the Board.
Finally, the 1997 SigMod Permit Addendum proves that Robert
Pruim's claims are a total
fabrication.
The' January 1, 1997' Landfill Capacity Certification was sent by Andrews to
Illinois EPA on February
7, 1997
55
. The 1997 Addendum was completed
after
the submission
of Exhibit 14(f) and submitted to Illinois EPA on April 30, 1997
56
. The report plainly states the
amount
of overheight in Parcel B of the Landfill, as of that date, to be 475,000 cubic yards of
waste.
Parcel B
of the Landfill, the parcel relevant to the violations alleged in Counts VII-X,
rcachcd capacity no latcr than August 1994, and should havc bcen shut down. Landfill Sitc
Manager James Pelnarsh testified regarding who had that authority, as follows:
Q.
Now in the period in the mid '90s in your position at Community Landfill Company
did you have authority to cease operations? Could you have shut down the landfill?
A. No.
Q.
That would have required the approval of Bob or Ed Pruim, wouldn't it?
A.
Bob or Ed or the IEPA.
57
54Complainant's Exhibit 14(e)
55Complainant's Exhibit 14(f), p.l
56Complainant's Exhibit 1(f)
57Tr., 12/4/98, p.25
18
Clearly, as the sole owners and shareholders of Community Landfill Company, only
Robert and Edward Pruim had the authority to shut down operations. They signed and certified
permit applications limiting the height
of the Landfill to 580' MSU
8
. Their signatures on the
1995 and 1996 Landfill Capacity Certifications proves that they were aware that Parcel B was at,
or over, capacity
.. However, they continued to allow waste disposal through at least April 30,
1997, resulting in at least 475,000 cubic yards
of overheightlovercapacity within Parcel B of the
Landfi1l
59
. Robert and Edward Pruim were personally and directly involved in the overheight
violations at the Landfill, and must be held liable.
c.
Edward and Robert Pruim Must be Held Liable
The Evidence Set Forth in Section IV.b.I-5 supports the violations alleged against
Edward Pruim and Robert Pruim in Counts VII through X in Case No. PCB 04-207, as follows:
Count VII
DEPOSITING WASTE iN UNPERMITTED PORTIONS OF A LANDFILL
Edward Pruim and Robert Pruim caused and allowed the deposition of waste over 580'
MSL, an area not permitted for the disposal
of waste, and thereby violated Section 21 (0) of the
act, 415 ILCS 5/21
(0) (2002).
Count VIII
CONDUCTING A WASTE DISPOSAL OPERATION WITHOUT A PERMIT
Edward and Robert Pruim caused and allowed waste to be disposed of above 580' MSL at
the Landfill, an area not permitted for waste disposal under Permit No. 1989-005-SP. Edward
and Robert Pruim thereby violated Section
21 (d)(l) of the Act, 415 ILCS 5/21 (d)(1) (2002).
58Complainant's Exhibit l(a)
59Exhibit 1
(t), p. 17 (marked page 11 at bottom of page).
19
Electronic Filing - Received, Clerk's Office, February 6, 2009
Count IX
OPEN DUMPING
Edward and Robert Pruim caused and allowed the consolidation of waste from refuse
from one or more sources above 580' MSL at the Landfill, an area not permitted for waste
disposal, and therefore a disposal site that did not fulfil the requirements
of a sanitary landfill.
Edward and Robert Pruim thereby violated Section
21 (a) of the Act, 415 ILCS 5/21 (a) (2002).
Count X
VIOLATION
OF STANDARD CONDITION 3
Standard Condition 3 of Permit No. 1989-005-SP provides:
There shall be no deviations from the approved plans and specifications unless a written
requ~st
for mod(/ication of the project, along with plans and spec(/ications as required,
shall have been submitted to the Agency
and a supplemental permit issued'li.
Permit No. 1989-005-SP approved the Respondent's application which limited the height
of Parcel B of the Landfill to 580' MSL. By causing and allowing waste deposition at the
Landfill which caused the overall height to exceed 580' MSL, Edward Pruim and Robert Pruim
violated Standard Condition 3
of Permit No. 1989-005-SP, and thereby also violated Section
21 (d)(l) of the Act, 415 ILCS 5/21 (d)(l) (2002).
V. COUNT IV (PCB 97-193 and PCB 04-207): CLC AND THE PRUIMS ARE
JOINTL Y LIABLE FOR THE FINANCIAL ASSURANCE VIOLATION ALLEGED
IN COUNT IV
a.
The Liability of CLC has Already Been Established
On October 3,2002, the Board granted summary judgment against CLC on Count IV for
failure to provide financial assurance in the amount
of $1 ,342,500 from July 19, 1993 until June
20, 1996. The Board found that CLC thereby violated 415 ILCS 5/21.1, 415 ILCS 5/21 (d)(2)
6OComplainant's Exhibit 2(a), p.8
20
Electronic Filing - Received, Clerk's Office, February 6, 2009
(2002), and 35 Ill. Adm. Code 807.601(a) and 807.603(b)(l).
b.
The Evidence Prove the Personal and Direct Involvement of Edward
&
Robert
Pruim in the Violations Alleged in Counts IV (PCB 04-207)
In their answers, both Edward and Robert Pruim admit that CLC's permit required
financial assurance to be posted in the amount
of $1 ,342,500.00, admit to failing to arrange
financing and increase financial assurance to $1,342,500.00 within 90 days
of April 20, 1993,
and admit that Edward and Robert Pruim eventually arranged for and provided this amount
of
financial assurance on June 20, 1996
61
. These admissions establish the violations
62
.
The evidence establishes that the Pruims inaction constitutes 'personal and direct
involvement' sufficient to establish personal liability for the violations alleged in Count
IV of
Case No. PCB 04-207.
1.
Robert and Edward Pruim are Subject to the Act and Regulations
The Act's definition of 'persons' includes individuals. Sections 2l.1 (a) and 21 (d)(2) of
the Act, and 35 Ill. Adm. Code 807.601(a) apply to 'persons'. 35 Ill. Adm. Code 807.603(b)(l)
applies to
'the operator', defined in the regulations as " .. a person who conducts a waste
treatment, waste storage or
~aste
disposal operation,,63. As owners and managers of CLC who
had the sole authority and ability to finance the arrangement
of financial assurance for the
Landfill, Edward Pruim and Robert Pruim should also be considered 'operators' for the purpose
61Edward Pruim Answer,
p. 20; Robert Pruim Answer, p.20
62Complainant also requests that the Board take notice
of its October 4, 2002 ruling
against CLC on Count
IV of Case No. PCB 97-193.
See also,
testimony of Blake Harris, Tr.,
12/2/04,
pp. 96-101, and Complainant's Exhibit 2(b), p.2, Complainant's Exhibit 9,
Complainant's Exhibit
19.
63
35 Ill. Adm. Code 807.104.
21
Electronic Filing - Received, Clerk's Office, February 6, 2009
of35 Ill. Adm. Code 807.603(b)(1).
2.
Only Edward
&
Robert Pruim could have Caused CLC to Provide Financial
Assurance for the Landfill
As previously noted, only' Edward and Robert Pruim had the authority to sign checks for
CLC during the relevant period
64
•
In addition, only the Pruims had the authority to arrange for
financial assurance. Robert Pruim admitted this fact at hearing:
Q.
Who besides you and Edward Pruim could have directed CLC to increase its
financial assurance? Who besides you and Edward Pruim could have made CLC
increase ils financial assurance?
A.
Gotten
it
or made ...
l
don
'I
understand.
Q.
You were the sole shareholders ..
A.
Yes.
Q.
Who besides the two o/you could have increased the financial assurance/or
CLC?
Edward Pruim testified in accord, as follows:
Q.
Considering that
YOli
and Mr. Robert Pruim are the sole officers and owners 0/
CLC, only you could have taken action to increase that financial assurance,
correct?
A.
Yes, as officers o/Community LandfillMi.
Robert and Edward Pruim also provided personal guarantees for Frontier Insurance
64Tr.,
12/4/08,
p.73
65Tr.,
12/4/08,
p. 66
66Tr.,
12/4/08,
p.73-74
22
Company bonds used as financial assurance during the relevant period
67
. By personally
guaranteeing financial assurance bonds, they clearly had a personal motive in deciding when and
how much
of their resources to put at risk.
There is no need to go further. Edward and Robert Pruim were the only persons who
could have arranged for the appropriate amount
of financial assurance at the Landfill. Yet for
three years, from 1993 to 1996, they failed to do so. Notably, they did not decide to close the
Landfill, and in fact continued waste disposal operations even after notifying Illinois
EPA that no
further capacity remained. They decided to keep operating in clear violation
of the Act and
financial assurance regulations. They must not be allowed to escape liability for their personal
and direct involvement in the violations alleged in Count IV. By failing to increase financial
assurance by July
19,1993, Edward and Robert Pruim violated 415 ILCS
5/21.1
(2002),415
ILCS
5/21(d)(2)
(2002), and 35 Ill. Adm. Code Sections 807.601(a) and 807.603(b)(1).
VI. COUNT XIX (PCB 97-193) AND COUNT XVII (PCB 04-207): CLC AND THE
PRUIMS ARE JOINTLY LIABLE FOR THE ALLEGED FINANCIAL
ASSURANCE VIOLATIONS
a.
CLC is Liable for Both Violations
In Count XIX of Case No. PCB 97-193, Complainant alleges two failures to increase
financial assurance, in violation
of Special Condition 13 of Permit No. 1996-240-SP
68
, and
therefore also
in violation of Section 21(d)(l) of the Act, 415 ILCS 5/21(d)(1) (2002). On
October 3, 2002, the Board entered partial summary judgment against CLC on Count- XIX
of the
Complaint in PCB 97-193 on the first financial assurance violation, i.e. the failure to increase
67Tr.,
12/4/08,
p. 41-
68Complainant's Exhibit 2(c), p. 3
23
Electronic Filing - Received, Clerk's Office, February 6, 2009
financial assurance to $1,431,360.00 by January 22, 1997
69
. However, the Board found issues of
fact regarding the alleged second failure to increase financial assurance, i..e. the failure to increase
the financial assurance to $1,439,720.00 upon commencement
of operation of the gas extraction
system at the LandfiWo. As noted by the Board, the second increase in financial assurance (i.e.
to $1,439,720.00) was accomplished on September
1,1999
71
.
Illinois EPA inspector Tina Kovasznay testified that she visited the Landfill on March 31,
1999
72
. She also testified that, at the time of the inspection, the landfill gas extraction system
was operating. She reached this conclusion based on the fact that she heard the associated gas
turbines running, and based on the statements
of Landfill Site Manager James Pelnarsh, who told
Ms. Kovasznay that the extraction system had been operating for a month
73
. This statement is
corroborated by the report written by Ms. Kovasznay after the March 31, 1999 inspection.
In the
narrative portion, Ms. Kovasnay noted:
"We began by inspecting Parcel B. According to Mr. Pelnarsh, a gas management
system was constructed and has been operating on Parcel B
for the last month. This
system was operating at the time
of the inspection ,,7-1.
In his affidavit in support ofCLC's Motion for Summary Judgment, Mr. Pelnarsh denies
that the system was operating and disavowed his admission to Ms. Kovasznay, specifically:
690ctober 3, 2002 Board Order in PCB 97-193, slip op. at 20-21
72Tr.,
12/2/08,
p.21
73Tr.
12/2/08,
p. 27
74Complainant's Exhibit 13(i),
p. 7
24
Electronic Filing - Received, Clerk's Office, February 6, 2009
13.
As part of the system installation, periodically KMS would test portions of the
system to determine
if
the component parts had been properly installed as would
be normalfor a system
of this complexity and magnitude. On March
31,
19991
believe KMS was simply testing one engine on the system
and not operating the
system. 1
do not recall advising IEP A inspector Kovasznay that the system was
operating on March
31, 1999
75
.
However, in his testimony at hearing, Mr. Pelnarsh admitted that he did not make reports
after Illinois EPA inspectors visited the Site
76
. He also said that his statements were based on
his recollection at the time he executed the affidavit (March
1, 2002)77.
The
Boarc;l should find that Mr. Pelnarsh's affidavit and testimony are not accurate. Ms.
Kovasznay's statements were included in her inspection report, made soon after the March 31,
1999 inspection. Mr. Pelnarsh did not make notes
or records after Illinois EPA inspections, and
executed the affidavit almost three years later, in the course
of contested litigation against his
employer. Clearly Ms. Kovasnzay's testimony, supported by her inspection report, should be
considered far more credible. The Board should find that the Respondents began operation
of
the gas extraction system prior to increasing financial assurance to $1,439,720.00, in violation of
Condition 13 of Permit No. 1996-240-SP.
b.
Edward
&
Robert Pruim are Liable for the Violations Alleged in Count XVII (Case
No. 04-207)
In Count XVII of Case No. PCB 04-207, Complainant alleges that Edward and Robert
Pruim are liable for the same violations alleged against CLC in Count XIX
of Case No. PCB 97-
193. Both Edward and Robert Pruim admit the requirements
of Special Condition 13 of Permit
75Respondent's Exhibit 9, p.3
76Tr.,
12/4/08,
p. 19
77Tr.,
12/4/08,
p.22
25
1996-240-SP, and admit that
they
were required to upgrade financial assurance by the dates in
Complainant repeats its argument for liability for Count IV (Case No. 04-207), which
also relates to the failure to upgrade financial assurance for the Landfill. Clearly, only Edward
and Robert Pruim had the authority and capacity to increase the amount
of financial assurance in
accordance with the requirements of the Landfill's waste disposal permit. By failing to increase
the financial assurance to $1,431,360.00 by January 22, 1997, and by failing to increase the
financial assurance to $1,439,720.00 prior to commencing operation
of the gas extraction system,
Edward Pruim and Robert Pruim violated Special Condition
13 of Permit 1996-240-SP and
thereby also violated Section 21(d)(1)
of the Act, 415 ILCS 5/21(d)(I) (2002).
VII.
CLC, EDWARD PRUIM, AND ROBERT PRUIM ARE JOINTLY LIABLE FOR
FAILURE TO FILE A TIMELY SIGNIFICANT MODIFICATION PERMIT
APPLICATION (PCB 97-193, Count V; PCB 04-207, Count V)
a.
The Liability of CLC has Already Been Established in Case No. PCB 97-193
On April 5,2001, the Board granted summary judgment to Complainant on Count V for
failing to file its Significant Modification ("SigMod") Permit application by June 15, 1993.
in
Case No. PCB 97-193. On July 26,2001 the Board explained that in its April 5, 2001 Order it
found CLC liable for violations
of Section 21(d)(2) of the Act and 35 Ill. Adm. Code 814.104,
and further noted that the violations lasted from June 15, 1993 until August
5, 1996
79
.
b.
Edward Pruim and Robert Pruim are Responsible for CLC's Violations and
Liable for the Violations Alleged in Count V (Case No. PCB 04-207)
In their Answers, both Edward Pruim and Robert Pruim admit that CLC did not file
78Edward Pruim Answer, pp. 63-64; Robert Pruim Answer, pp. 63-64
79July 26,2001 Board Order in PCB 97-193, slip op. at 4
26
its SigMod permit until August 5, 1996
8
°.
The Board has found that this failure resulted in a
violation
of the Act and pertinent regulations. The Board should also find Edward Pruim and
Robert Pruim liable for these violations, as alleged in Count V
of Case No. PCB 04-207.
Edward Pruim and Robert Pruim were the sole owners and officers
of CLC during the
relevant period, and therefore the only persons with authority to cause the company to take
action. They also
were responsible for, and did, arranged for and sign Landfill's previous permit
applications
81
. Landfill Site Manager James Pelnarsh did not have any responsibility for permit
applications
82
. Edward Pruim admitted that he was involved in filing the significant
modification permit
'as an officer of the company'83.
Clearly, Edward Pruim and Robert Pruim had personal knowledge of the filing deadline.
As Edward Pruim testified at hearing:
Q.
Mr. Pruim, I want to ask you some questions about the late filed SIGMOD
application. That permit application
for the purpose 0.[ continuing to operate the
landfill, correct, after a certain date in the 1990's?
A. Yeah. And I believed that would be to expand into ... our lease brought us back into
Parcel
A, which we never had. That was also included in the permit application.
Q.
I understand, but as of I
993
you were required to either file a SIGMOD application
or to shut the landfill down, correct?
A.
Yes, we were.
8°Edward Pruim Answer p.24, Robert Pruim Answer p.24
81See: Complainant's Exhibit 1 (a), p.8 [1989 development permit application signed by'
Edward Pruim]; Complainant's Exhibit l(e), p.3 [1996 SigMod Permit application signed by
Robert Pruim].
82TL,
12/4/08,
p. 16
83TL,
1214/08,
p.85
27
Q.
And you decided to continue operations and to file the SIGMOD application,
correct?
Robert Pruim testified that, as of 1993, they did not have control of Parcel A
8s
.
However, he clearly was also aware
of the 1993 filing requirement, testifying:
A. Well we approached the City oj Morris and we explained our situation that we had a
deadline
to apply and they said they would review it, which they did and it took some
time
liri
.
It
is apparent that the knowing failure to file the required significant modification permit
was a
business decision
by Edward and Robert Pruim. They wanted to expand their operations
to include Parcel A
of the Landfill, to which they had no access. As they testified, the delay was
attributable to negotiations with the Landfill owner, the City
of Morris.
However, the Pruims' business decision flew in the face
of the Board regulations. Their
explanation
of the delay ignores one important fact: They continued to operate Parcel B of the
Landfill throughout this period.
In
1994 and 1995 alone they caused and allowed the disposal of
almost one million cubic yards of waste in Parcel B87. Edward and Robert Pruim did not request
. a variance from the Board prior to the 1993 deadline. They did not close down the Landfill while
waiting for negotiations with the City
of Morris to be completed, nor did they cause the filing of
a SigMod permit application for Parcel B alone. They just continued to operate as thought the
84Tr.,
12/4/08,
p.l 01
8sTr.,
12/4/08,
p. 87
86Tr.,
12/4/08,
p.87
87Complainant's Exhibit 14(d),
p. 4; Complainant's Exhibit 14(e) p. 4. These Landfill
Capacity Certifications show that CLC accepted 997,143 cubic yards
of waste during 1994 and
1995.
28
Electronic Filing - Received, Clerk's Office, February 6, 2009
permit deadline did not exist.
As found by the Board, the Landfill's late SigMod application was in violation
of the Act
and regulations. The Board should also find that Edward and Robert Pruim had personal and
direct involvement
in these violations, and thereby violated Section 21(d)(2) of the Act, 415
ILCS 5/21(d)(2) (2002), and
35 Ill. Adm. Code 814.104, as alleged in Count V (Case No. PCB
04-207).
VIII. CLC AND THE PRUIMS ARE JOINTLY LIABLE FOR FAILURE TO PROVIDE
A REVISED COSTS ESTIMATE BY DECEMBER 26,1994 (PCB 97-193, Count
XXI; PCB 04-207, Count XIX)
a.
The Liability of CLC has Already Been Established in Case No. PCB 97-193
On October 3, 2002, the Board found that, by failing to file a revised cost estimate by
December
26,1994, and thereby violated Section 21(d)(2) of the Act, 415 ILCS 5/21(d)(2)
(2000), and 35 Ill. Adm. Code 807.623(a).
b.
Edward Pruim and Robert Pruim are Responsible for CLC's Violations and
Liable for the Violations Alleged in Count XIX (Case No. PCB 04-207)
Edward Pruim and Robert Pruim admit that the Landfill's Permit required the filing of a
revised cost estimate by December 26, 1994, but deny knowledge sufficient to form a belief as to
whether they failed to cause CLC to provide such a cost estimate
88
. Complainant requests that
the Board adopt the findings in its Order granting summary judgment to Complainant on Count
XIX (PCB 97-193).
There can be no doubt that Edward and Robert Pruim failed to cause the filing
of the
revised cost estimate. As argued above, only they had the authority to cause the filing
of this
document,
just as only they had the authority to decide whether to continue waste disposal
88Edward Pruim Answer,
p. 71; Robert Pruim Answer, p. 71
29
operation or whether to close the landfill. Landfill Site Manager James Pelnarsh did not have
copies
of permits at the Landfill and was not aware of the conditions of the permits
89
.
Section
21 (d)(2) of the Act, 415 ILCS 5/21 (d)(2) (2002), provides;
No person shall:
*
*
*
d. Conduct any waste-storage, waste-treatment, or waste disposal operation:
*
*
*
2) in violation of any regulations or standards adopted by the Board under this
Act;
The Pruims are 'persons' under the Act. They made all
of the significant decisions
related to operation
of Landfill, including decisions on whether or not to continue operations,
whether and when to file permits, whether and when to comply with the pertinent landfill
regulations. They,
in addition to CLC, conducted a waste disposal operation. By failing to
direct filing
of the annual cost estimate, Edward Pruim and Robert Pruim, in addition to CLC
violated 35 Ill. Adm. Code 807.623(a), and thereby also violated Section 21(d)(2)
of the Act, 415
ILCS 5/21(d)(2) (2002), as alleged in Count XIX
of Case No. PCB 04-207.
IX.
CLC AND THE PRUIMS ARE JOINTLY LIABLE FOR 'DAILY OPERATION
VIOLATIONS; AT
THE LANDFILL
(PCB 97-193, Counts I, II, III, VI, ,XIII)
(PCB 04-207, Counts I, II, III, VI, XII)
Counts I, II, III, VI, and XIII in case No. PCB 04-207 and Counts I, II, III, VI, and XII in
PCB 04-207 allege conditions at the Landfill related to maintenance, supervision, and daily
operation issues. As sole owners and operators
of Community Landfill Company, Edward
Pruim and Robert Pruim had the responsibility to ensure that daily landfill operations did not
result in violations
of the Act. Moreover, since they alone arranged for and signed Permit
89Tr., 12/4/08, p. 16
30
Electronic Filing - Received, Clerk's Office, February 6, 2009
Applications and because issued permits (with the conditions required for daily operations) were
kept at the
'main office' in Crestwood and/or Riverdale, Illinois, only Edward Pruim and Robert
Pruim had complete knowledge
of all the operational requirements for the Landfi1l
90
.
Complainant believes that the Board should adopt and apply a "Responsible Corporate
Officer" theory
of liability for these daily operational violations. As noted herein (See: Section
III.b), the Responsible Corporate Officer Doctrine has been applied to find officer liability in
environmental cases in a number
of other states. Complainant believes that the Indiana Supreme
Court's decision in
Commissioner, Department of Environmental Management
v.
RLG, Inc. et
al.
')/ is particularly on point. In that case, the company had a single owner and officer, who acted
as 'responsible official' in dealings with Indiana environmental regulators. In finding personal
liability, the Indiana Supreme Court examined factors such as
1) whether an owner was in a
position
of responsibility, 2) whether the acts leading to the violations were within the owners
'sphere of responsibility', and 3) whether the owner failed to prevent the violations and take
proper corrective actions after
92
.
In our case, Edward and Robert Pruim are the sole owners and officers of CLC. They
assumed responsibility for obtaining permits and submitting reports, and kept permit files at their
offices, not at the Landfill.
. In the Permit applications, they named themselves as the persons to
90See: testimony of CLC Site Manager James Pelnarsh, Tr., 12/4/08, p. 16. Mr. Pelnarsh
was not familiar with permit details. Permits and permit records were not kept at the Landfill,
but rather at the main office.
91
755 N.E.2d 556 (Ind. 2001)
92
755 N.E.2d 556, 562
31
contact.
93
They alone controlled finances, and thereby had the capacity to correct violations. The
Board should adopt and apply the Responsible Corporate Officer Doctrine in this case and find
personal liability for the daily operating violations.
Count I (PCB 97-193 and Count I PCB (04-207):
F AlLURE TO ADEQUATELY MANAGE REFUSE AND LITTER
Hearing was held on liability and remedy in both cases, on alleged violation of Sections
21(d)(2) and 21(0)
of the Act, and 35 Ill. Adm. Code 807.306. The alleged violations were
based on Illinois EPA inspections made between 1994 and 1999. Complainant's evidence
consisted
of the following:
1)
Warren Weritz, inspector for the Landfill from 1993 to 1999, testified to his April
7, 1994 inspection, and the inspection report generated thereafter, which included
his observations that litter was present in water in perimeter ditches at the Site,
and an admission by Site Manager James Pelnarsh that litter was not being
collected at the end of each operating day94.
2)
Mr. Weritz testified to his March 22, 1995 inspection, and the inspection report
generated thereafter, which included his observations
of refuse and litter in water
within perimeter drainage ditches and a retention pond at the Landfill, and to
pictures taken by himself
of the refuse in standing water at the Landfi1l
95
.
3)
Mr. Weritz testified to his May 22, 1995 inspection, and the inspection report
generated thereafter, which included his observations
of refuse in waster in the
North Perimeter Ditch at the Site
96
.
4)
Mr. Weritz testified to his July 28, 1998 inspection, and the inspection report
generated after the inspection. He testified that he found uncovered waste from
previous landfill operation in Parcel A
of the landfill, specifically old waste being
93See Complainant's Exhibit l(a) , p.7 (Operator Contact Name: Edward Pruim);
Complainant's Exhibit
l(e) (Operator Contact Name: Robert Pruim)
94Tr., 12/3/08, p. 65; Complainant's Exhibit No. 13(b)
95Tr., i2/3/08 p. 66; Complainant's Exhibit 13(e), pp. 5,13
96 Tr., 12/3/08, p.70; Complainant's Exhibit 13(f), p. 4
32
excavated and moved
97
.
5)
Ms.
Tina Kovasznay testified regarding her March 31, 1999 inspection and the
inspection report generated after the inspection. She testified that she observed
blowing litter
on the Southeast side of the Landfill, and was advised by Site
Manager James Pelnarsh that his helper was not at work, which she took to mean
that there was no one to collect the litter at the end of the operating day98.
In his affidavit in support of CLC's Motion for Summary Judgment, Mr. Pelnarsh denies
that he told Warren Weritz that litter was
not being collected, specifically:
5.
At no time did I ever advise Warren Weritz that we were not picking up litter, or
that our litter was not being collected at the end
of each operating day as
required
J9
.
However, in his testimony at hearing, Mr. Pelnarsh admitted that he did not make reports
after Illinois
EPA inspectors visited the Site
lOo
•
He also admitted that his statement was based
on his recollection at the time he executed the affidavit (March
1, 2002) 101. This would have
been almost
eight years
after the admission memorialized in Mr. Weritz's inspection report for
April 7, 1994.
The Board should find that Mr. Pelnarsh's affidavit and testimony are not
accurate. Clearly Mr. Weritz's testimony, supported by his inspection report, should be
considered far more credible.
Section
21 (0)
of the Act,
415
ILCS
5/21
(0)( 1 ) (
2002), prohibits' persons' from
conducting sanitary landfill operations in a
manner which results in refuse being present in
97Tr.
12/3/08,
p. 78-80; Complainant's Exhibit 130)
98Tr.,
12/2/08,
p. 35; Complainant's Exhibit 13
(I)
99Respondents' Exhibit 9, p.l
100Tr.;
12/4/08,
p. 19
10ITr.,
12/4/08,
p.20
33
standing or flowing water. Section 21(0)(5), 415 ILCS 5/21(0)(5) (2002), and 35 Ill. Adm.
Code 807.306, prohibit causing or allowing refuse or litter from a previous operating day to
remain uncovered. Section
21 (d)(2) of the Act, 415 ILCS 5/21 (d)(2) (2002), prohibits
conducting a waste disposal operation
in violation of regulations.
Based on the evidence, the Board should find in favor
of Complainant against CLC on
Count I (PCB 97-193) for violation
of Sections 21 (0)(1) and 21 (0)(5) and 21 (d)(2) of the Act,
415 ILCS 5/21(0)(1) (2002), 5/21(0)(5) (2002), and 415 ILCS 5/21(d)(2) (2002), and 35
Ill.
Adm. Code 807.306, and also find in favor of Complainant and against Edward Pruim and
Robert Pruim on Count I (PCB 04-207) for violation
of 21(0)(1) and 21 (0)(5) and 21(d)(2) of the
Act, 415 ILCS
5/21(0)(1)
(2002),
5/21(0)(5)
(2002), and 415 ILCS
5/21(d)(2)
(2002), and 35 Ill.
Adm. Code 807.306.
Count II (PCB 97-193) and Count II (PCB 04-207)
FAILURE TO PREVENT OR CONTROL LEACHATE FLOW
Hearing was held on liability and remedy on alleged violation of Sections 21 (d)(2) and
21(0)
of the Act, 415 ILCS
5/21(d)(2)
and
5/21(0)
(2002), and 35 Ill. Adm. Code 807.314(e).
The alleged violations were based on Illinois EPA inspections made in 1994 and 1995.
Complainant's evidence consisted
of the following:
1)
Warren Weritz, testified regarding his April 7, 1994 inspection, and the inspection
report generated thereafter. On April
7, 1994 he found five leachate seeps along
the northwest perimeter
of the Landfill
102
. According to Mr. Weritz, leachate is
liquid which has come into contact with garbage at a landfill
103 .
2)
Mr. Weritz testified regarding an inspection made on March 22, 1995, and the
inspection report generated thereafter.
On this date he say numerous leachate
102Tr. 12/3/08, p.66; Complainant's Exhibit 13(b), p.5
I03Tr.,
12/3/08,
p.68
34
seeps along the northwest perimeter of the Landfill. The seeps were flowing
directly to a perimeter ditch, which contained leachate.
Mr Weritz identified the
liquid as leachate because it was flowing out
of the sidewall of the landfill, had a
reddish stain, and had a foul odorl04.
3)
Mr. Weritz testified regarding an inspection made on May 22, 1995 and the
inspection report generated thereafter. On this date he observed numerous
leachate seeps and the perimeter ditches 'running red with a lot
of leachate' 105.
Again, he identified the liquid as leachate by its color, appearance, and foul odor.
The inspection report and Mr. Weritz testimony indicate that the leachate in the
perimeter ditch flowed to an on-site retention pond.
In their arguments in summary judgment, Respondents make much
of the fact that no
samples
of the leachate were taken and analyzed by Illinois EPA inspectors, but do not propose
exactly
what
tests should be performed. They claim that the 'red color' was due to iron deposits,
but never tested the liquid for iron content themselves
l06
. At hearing the Respondents did not
supply any evidence whatsoever, either through expert opinion or otherwise, to back up their
claim that the color and foul odor was attributable to iron.
Clearly, Mr. Weritz's observations
of the red, foul smelling liquid seeping from the side
of the landfill, the pictures of the leachate 'blowout' from the May 22,1995 inspection report
l07
,
and the presence
of the liquid in perimeter ditches and the retention pond are persuasive:
between 1994 and 1995, the Respondents failed to stop leachate from flowing out
of the sides of
the Landfill and entering waters of the State
lO8
•
In this case, the leachate entered surface waters
104Id. Complainant's Exhibit 13(e), pictures 5-7
105Tr., 12/3/08, p.72
106Testimony
of James Pelnarsh, Tr., 12/4/08, pp. 21-22
I07Complainant's Exhibit 13(f), pp. 12-14
I08Pursuant to 415 ILCS 5/3.550 (2002), "waters' include surface water in the perimeter
ditches and the retention pond at the Landfill.
35
in the perimeter ditch and retention pond.
Section 21(0)(2)
of the Act, 415 ILCS 5/21(0)(2) (2002), prohibits 'persons' from
conducting sanitary landfill operations
in a manner which results in leachate entering 'waters of
the State". Section 807.314(e) of the Board regulations, 35 Ill. Adm. Code 807.314(e) prohibits
operation
of a sanitary landfill without adequate measures to control leachate. Section 21 (d)(2)
of the Act, 415 ILCS 5/21 (d)(2), prohibits conducting a waste disposal operation in violation of
regulations.
The Board should find in favor
of Complainant against CLC on Count II (PCB 97-193)
for violation
of Sections 21 (0 )(2) and 21 (d)(2) of the Act, 415 ILCS 5/21 (0 )(2) (2002), and 415
ILCS 5/21 (d)(2) (2002), and
35 Ill. Adm. Code 807.314(e), and also find in favor of Complainant
and against Edward Pruim and Robert Pruim on Count
II (PCB 04-'207) for violation of 21 (0)(2)
and 21(d)(2)
of the Act, 415 ILCS 5/21(0)(2) (2002), and 415 ILCS 5/21(d)(2) (2002), and 35 Ill.
Adm. Code 807.314(e).
Count VI (PCB 97-193) and Count VI (PCB 04-207)
WATER POLLUTION
Hearing was held on liability and remedy on alleged violation of Sections 12(a), 21 (d)(2)
of the Act, 415 ILCS 5/12(a), and 5/21(d)(2) (20002) and 35 Ill. Adm. Code 807.313. The
alleged violations are based on Warren Weritz's May 22, 1995 inspection. Because the facts
related to Count
II are also the facts establishing the violations in Count VI in both cases,
Complainant incorporates its arguments on liability for Count
II above.
The evidence clearly indicates that leachate entered perimeter ditches and the retention
pond at the Landfill. Mr. Weritz found leachate seeps on the sides
of the Landfill, dark staining
36
indicating leachate flow, and foul smelling, colored liquid in the adjacent perimeter ditches and
in the retention pond. Leachate is a contaminant
109
. The Landfill is a permitted municipal solid
waste and special waste disposal facility. Liquid coming in contact with this type
of mixed
waste may be presumed to be 'likely to create a nuisance', all that is necessary for the leachate to
cause water pollution 1
10. Clearly, it did create an odor nuisance on May 22, 1995.
Respondents entered no evidence on this issue. Michael
McDermont~
who had provided
an affidavit in support
ofCLC's Motion for Summary Judgment and who had been named as a
hearing witness, neither appeared nor testified. As noted above, the Respondents did not test the
leachate to prove the off-color and odor were due to iron. There can be only one conclusion:
Mr. Weritz, an experienced landfill inspector, correctly identified leachate entering waters
of the
State
of Illinois.
Section 12(a)
of the Act, 415 ILCS 5/12(a) (2002) prohibits causing, threatening, or
allowing water pollution.
35 Ill. Adm. Code 807.313 prohibits operating a sanitary landfill in
such manner as to cause, threaten and allow waster pollution. Section
21 (d)(2) of the Act, 415
ILCS 5/21(d)(2) (2002), prohibits conducting a waste disposal operation in violation
of the
regulations.
The Board should find in favor
of Complainant against CLC on Count VI (PCB 97-193)
for violation
of Sections 12(a) and 21(d)(2) of the Act, 415 ILCS 5/12(a) (2002) and 415 ILCS
5/21(d)(2) (2002), and 35 Ill. Adm. Code 807.313, and also find in favor
of Complainant and
against Edward Pruim and Robert Pruim on Count VI (PCB 04-207) for violation
of Sections
109"Contaminant"is broadly defined as
'any solid liquid or gaseous matter, any odor, or
any form
of energy from whatever source'. 415 ILCS 5/3.170 (2002).
11°415 ILCS 5/3.545 (2002).
37
Electronic Filing - Received, Clerk's Office, February 6, 2009
12(a) and 21(d)(2) of the Act, 415lLCS 51l2(a) (2002) and 5/21(d)(2) (2002), and 35 III. Adm.
Code 807.314(e).
Count III (PCB 97-193 and PCB 04-207)
FAILURE
TO PROPERLY DISPOSE OF LANDSCAPE WASTE
On October 3, 2002, the Board granted summary judgment against CLC on Count
III.
Therefore, hearing was for the purpose of penalty against CLC and for liability and penalty
against Edward Pruim and Robert Pruim on Count
III
in Case No. PCB 04-207.
Section 22.22(c)
of the Act, 415 ILCS 5/22.22(c) (2002), prohibits 'owners and operators
of a sanitary landfill' from accepting and disposing of mixed landscape/municipal waste.
Because
of their overall authority and involvement in Landfill management, Edward Pruim and
Robert Pruim should be considered 'operators'
of the Landfill.
Complainant requests that the Board apply the principles
of the Responsible Corporate
Officer Doctrine and find and also find in favor
of Complainant and against Edward Pruim and
Robert Pruim on Count
III
(PCB 04-207) for violation of Section 22.22( c) of the Act, 415 ILCS
5/22.22(
c) (2002).
Count XIII (PCB 97-193) and Count XII (PCB 04-207)
IMPROPER DISPOSAL OF USED TIRES
On October 3, 2002, the Board granted summary judgment in favor of Complainant and
against CLC on Count
XIII. Therefore, hearing was for the purpose of penalty against CLC and
for liability and penalty against Edward Pruim and Robert Pruim on the related violations alleged
against them
in Count XII in Case No. PCB 04-207.
Section
55 (b-l) of the Act, 415 ILCS 5/55(b-l) (2002), prohibits 'persons' from
accepting and disposing
of used tires mixed with other waste. Because of their overall authority
38
Electronic Filing - Received, Clerk's Office, February 6, 2009
and involvement in Landfill management, Edward Pruim and Robert Pruim should be considered
responsible for the acceptance
of used tires mixed with other waste at the Landfill.
Complainant requests that the Board apply the principles of the Responsible Corporate
Officer Doctrine and find and in favor
of Complainant and against Edward Pruim and Robert
Pruim on Count XII (PCB 04-207) for violation
of Section 55 (b-l) of the Act, 415 ILCS 5/55(b-
1) (2002).
X.
ADDITIONAL VIOLATIONS ALLEGED ONLY AGAINST CLC
Count XV (PCB 97-193)
VIOLATION
OF PERMIT CONDITION
Hearing on Count XV (PCB 97-193) was on both liability and penalty. In its order
denying summary judgment on this Count, the Board noted that the principal dispute was when
the gas management system
began operation III. This question was also a factor in Count XIX
(Case No. PCB 97-193) / Count XVII (Case No. PCB 04-207) relating to the alleged failure to
upgrade financial assurance prior to operation
of the gas extraction system, and Complainant
incorporates its argument on those counts herein.
As argued before, the Board should find that Mr. Pelnarsh's affidavit and testimony that
the gas system was not operating to be inaccurate. As previously noted, Ms. Kovasznay's
statements were included in her inspection report, made soon after the March 31, 1999
inspection I
12. Mr. Pelnarsh did not make notes or records after Illinois EPA inspections, and
executed the affidavit almost three years later. Clearly Ms. Kovasnzay's testimony, supported by
her inspection report, should be considered far more credible. The Board should find that the
IllOctober
4,2002 Board Order in PCB 97-193, slip op. at 16
112Complainant's Exhibit 13(1), p 7
39
Electronic Filing - Received, Clerk's Office, February 6, 2009
Respondents began operation of the gas extraction system prior to March 31, 1999.
Count XV alleges violations for failure to comply with the requirements
of Permit No.
1996-240-Spll3. This Permit was applied for by Community Landfill Company, as operator, and
the City
of Morris, as owner, on July 26,1996
114
.
It
was issued to the City of Morris and CLC on
October 24, 1996. Regardless
of who CtC claims was 'responsible' for the gas collection
system, CLC was responsible for compliance with Special Condition 1 (involving the submission
of reports prior to operation).
The Board should find that CLC did not submit the required information prior to
operation
of the gas control facility, and thereby violated Special Condition 1 of Permit 1996-
240-SP, and thereby also violated Section 21(d)(I)
of the Act, 415lLCS 5/21(d)(l) (2002).
Count XVII (PCB 97-193)
VIOLATION OF PERMIT CONDITION
Count XVII (PCB 97-193) was at hearing on both liability and penalty. Complainant has
alleged violation
of Special Condition 11 of Permit No. 1 996-240-SP, and therefore violation of
415 ILCS 5/21 (d)(l) (2000).
Special Condition
11
requires that all gas condensate and leachate removed from the
Landfill be disposed
of at a publicly owned treatment works or other treatment facilityl15. The
State alleges that on March 31, 1999 and July 20, 1999, CLC was using leachate pumped from
the Landfill to increase the moisture content
of new waste disposal cells, in violation of
Condition 11.
113Complainant's Exhibit 2(c)
114Complainant's Exhibit 1 (d), p.2
115Complainant's Exhibit 2(c),
p. 2
40
Illinois EPA inspector Tina Kovasznay testified that on March 31, 1999, she inspected the
Landfill and met with Site Manger James Pelnarsh. She testified that:
...
I was told by Mr. Pelnarsh that they were collecting the leachate and then
putting
it
into the new cells to increase the moisture contents of the clay'
j(i.
Ms. Kovasznay's testimony is supported by her inspection report for the March 31, 1999
inspection, which notes:
According to Mr. Pelnarsh, leachate is collected and then placed into the clay
used as liners
for the new cells. Mr. Pelnarsh stated that this practice is
conducted to increase the moisture content of the clay used for liners
117.
Ms. Kovasznay also testified that CLC was still using leachate pumped from the Landfill
for this purpose
on July 20, 1999. She testified as follows:
I didn't specifically observe it, but from Mr. Pelnarsh's statements he said that
they were still disposing
of the leachate into the clay of the cells to reduce [sic]
the moisture content at a rate
of approximately 3000 gallons a weekI/ii.
Again, her testimony is corroborated by the inspection report made after the July 20, 1999
inspection, which states, in pertinent part:
Although Mr. Pelnarsh was h?formed many times that he is not allowed to use
leachate
to increase the moisture content of the clay used for liners of new cells,
CL continues to dispose of leachate in this manner at a rate of at least 3,000
gallons a week.
... 1/9
As in the case of the date of operation of the gas collection system, Mr. Pelnarsh denies
116Tr.,
12/2/08,
p.26
117Complainant's Exhibit 13(1), p.7
IISTr.,
12/2/08,
p.37. Complainant believes that either Ms. Kovasznay misspoke, or the
court reporter incorrectly transcribed her testimony. The inspection reports and her testimony
regarding the prior inspection indicates that
CLC was using leachate to
increase
moisture
content. Obviously adding liquid will not reduce moisture content.
119Complainant's Exhibit 13(n), p.7
41
making these statement. However, he has admitted that he did not make contemporaneous
reports after Illinois
EPA inspections, and that the denials contained in his affidavit were based
on his recollection at the time he executed it, i.e. March
1, 2002 120. In contrast, Ms. Kovasznay
recorded her conversation with Mr. Pelnarsh in the inspection reports created soon after each
inspection
l21
. The Board should find that Mr. Pelnarsh's denials, made several years later in the
course
of contested litigation against his employer related to summary judgement in this matter,
are
just not credible ..
The Board should find that, during March 31, 1999 and July, 1999, CLC violated Special
Condition No.
11 of Permit 1996-240-SP, and thereby also violated Section 21 (d)(l) of the Act,
415 ILCS
5/21
(d)(l )(2002).
Count xx (PCB 97-193)
VIOLATION
OF PERMIT CONDITION
Count XX was at hearing for both liability and penalty against CLC only. However, no
evidence was entered at hearing
on Count XX, and many of its allegations are duplicative of the
violations alleged in
Count XVII above (Case No. 97-193). Complainant therefore requests that
Count
XX (Case No. 97-193) be dismissed.
Count XIV (Case no. 97-193)
VIOLATION
OF PERMIT CONDITION
On October 3,2002, the Board granted Summary Judgment for Complainant, finding
violations
of Permit No. 1989-005-SP (Standard Operating Condition No. 13) and 415 ILCS
120Tr.,
12/4/08,
p. 19
121Exhibit
13(1) shows that the report was received by Illinois EPA in its finished form on
April 30, 1999, about 30 days after the inspection.
42
5/21
(d)( 1) (2002) for failure to use fencing to prevent blowing litter on March 31, 1999
122
. At
hearing the permit was entered into evidence
123
a~d
inspector Tina Kovasznay described the
March 31, 1999 inspection
l24
.
Count XVI (Case no. 97-193)
VIOLATION
OF PERMIT CONDITION
On October 3.2002, the Board granted Summary Judgment for Complainant, finding
violations
of Special Condition 9 of Permit No. 1996-240-SP, and 415 ILCS 211(d)(1) (2002).
At hearing, inspection reports for March 31, 1999 and July 20, 1999 were entered into evidence.
XI.
COMPLAINANT'S REQUEST FOR FINDING OF VIOLATION
Complainant request that the Board find the following violations of the Act and Board
regulations in the consolidated matters:
a.
People of the State of Illinois v. Edward Pruim & Robert Pruim, PCB 04-207
(Liability joint and several against both Edward Pruim
&
Robert Pruim)
Count
I:
Count
II:
Count III:
Count IV:
Count V:
Violation of Sections 21(0)(1), 21(0)(5) and 21(d)(2) of the Act, 415 ILCS
5/21(0)(1),5/21(0)(5)
and
5/21(d)(2)
(2002), and 35 Ill. Adm. Code 807.306;
Violation
of Sections 21(0)(2) and 21(d)(2) of the Act, 415 ILCS
5/21(0)(2)
and
5/21(d)(2)
(2002), and 35 Ill. Adm. Code 807.314(e);
Violation
of Section 22.2(c) of the Act, 415 ILCS
5/22.2(c) (2002);
Violation of Sections 21.1 and 21 (d)(2) of the Act, 415 ILCS
5/21.1
and
5/21
(d)(2), and 35 Ill. Adm. Code Sections 807.601(a) and 807.603(b)(I);
Violation
of Section 21 (d)(2) of the Act, 415 ILCS
5121
(d)(2) (2002), and 35 Ill.
Adm. Code 814.104;
I22October
3,2002 Board Order in PCB 97-193, slip op. p.15
123Complainant's Exhibit 2(a)
124The inspection report was entered as Complainant's Exhibit 13(1)
43
Count VI:
Violation of Sections 12(a) and 21(d)(2) of the Act, 415 ILCS 5112(a) (2002) and
5/21
(d)(2) (2002), and 35 Ill. Adm. Code 807.314(e).
Count VII:
Violation
of Section 21(0) of the Act, 415 ILCS
5/21(0) (2002);
Count VIII:
Violation of Section 21(d)(l) of the Act, 415 ILCS
5/21(d)(l) (2002);
Count IX:
Violation of Section 21(a) of the Act, 415 ILCS
5/21(a) (2002);
Count X:
Violation of Section 21(d)(l) of the Act, 415 ILCS
5/21(d)(1) (2002);
Count XII
Violation of Section 55 (b-l) of the Act, 415 ILCS
5/55
(b-l) (2002)
Count XVII: Violation
of Section 21(d)(1) of the Act, 415 ILCS
5/21(d)(1) (2002).
Count XIX:
Violation of Section 21(d)(2) of the Act, 415 ILCS 5/21(d)(2), and 35 Ill. Adm.
Code 807.623(a).
b.
People of the State of Illinois v. Community Landfill Company, PCB 97-193
(in addition to the violations already found by the Board in summary judgment)
Count
I:
Violation of Sections 21(0)(1), 21(0)(5) and 21(d)(2) ofthe Act, 415 ILCS
5/21(0)(1),5/21(0)(5) and
5121
(d)(2) (2002), and 35 Ill. Adm. Code 807.306;
Count
II:
Violation of Sections 21(0)(2) and 21(d)(2) of the Act, 415 ILCS 5/21(0)(2) and
5/21(d)(2) (2002), and
35 Ill. Adm. Code 807.314(e);
Count
VI:
Violation of Sections 12(a) and 21(d)(2) of the Act, 415 ILCS 5112(a) (2002) and
5/21(d)(2)
(2002), and 35 Ill. Adm. Code 807.314(e);
Count XV:
Violation
of Section 21(d)(l) of the Act, 4151LCS 5/21(d)(l) (2002);
Count XVII: violated Section 21(d)(I)
of the Act, 415 ILCS
5/21(d)(
1) (2002);
Count XIX:
Violation
of Section 21(d)(l) of the Act, 415 ILCS
5/21(d)(I) (2002);
XII:
REQUESTED REMEDY
Complainant requests that the Board assess a civil penalty of Two Hundred Fifty
Thousand Dollars ($250,000.00) against Respondents Community Landfill Company, Edward
44
Pruim, and Robert Pruim, jointly and severally for the violations in cases PCB 97-193 and PCB
04-207. Because the Complainant has an action pending before the Board for final decision
which itself seeks a substantial penalty against CLC
125
,
Complainant only seeks a penalty for the
violations
common to both PCB 97-193 and PCB 04-207
126
.
a.
An Analysis of 33(c) factors Suggests the Need for a Civil Penalty
33(c)(i):
The character and degree of injury to, or interference with the protection
of the health, general welfare and physical property of the people;
The evidence shows a substantial degree of injury to the general welfare. The
Respondents operated a sanitary landfill in flagrant disregard for the welfare
of the surrounding
community, failed to control litter, failed to properly control leachate, violated numerous permit
conditions, and failed to provide financial assurance for long-term post-closure care. As result,
Complainant has been compelled to pursue .other
relief before the board to ensure that the
Landfill is safely closed and maintained post-closure
l27
33(c)(ii):
The social and economic value of the pollution source;
A well-operated sanitary landfill has a clear social and economic value during the period
it is accepting waste. However, a poorly run operation does not have the same degree
of social
and economic value. Moreover, the Landfill in question no longer has a valid operating permit
and therefore does not offer any social or economic value.
33(c)(iii):
The suitability or unsuitability of the pol/ution source to the area in which
125PCB 03-191
126Neither Edward Pruim nor Robert Pruim are Respondents in PCB 03-19l.
127PCB 03-191
45
Electronic Filing - Received, Clerk's Office, February 6, 2009
it is located, including the question of priority of location in the area
involved;
At the present time, and until Closure of the Landfill is undertaken, the Landfill is not
suitable to the area where it
is located.
33(c)(iv):
The technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges or deposits resulting/rom sllch
pollution source;
Operating a Landfill in accordance with Illinois EPA-issued permit, the Act, and Board
regulations
is technically practicable and economically reasonable.
33(c)(v):
Any subsequent compliance.
The Landfill is not now in compliance with the Act and Board regulations. The Board is
currently deliberating relief requested by the State in PCB 03-191, which, if granted, will
eventually bring the Landfill into compliance.
Summary of 33(c) Factors
Based on an evaluation of the Section 33(c) factors, Complainant believes that a
significant civil penalty
is appropriate and necessary to accomplish the purposes of the Act and
Board landfill regulations.
b.
Analysis of 42(h) Factors
Statutory Maximum Penalty
Pursuant to Section 42 of the Act, 415 ILCS 5/42 (2006), all of the alleged violations
allow for assessment
of a penalty of $50,000.00 per violation and $10,000.00 per day of
violation. However, the Statutory Maximum Penalty is much higher than the amount sought by
46
Electronic Filing - Received, Clerk's Office, February 6, 2009
Complainant
128
•
42(h)(1): Duration and Gravity of the Violation
Duration: Taken as a whole, violations were ongoing throughout the relevant period, i.e.
from 1993 through 1999. Most
of the daily operating violations are only provable on the dates
of inspection. For Count
I
(both cases) for example, inspectors noted blowing and uncontrolled
litter and refuse on five visits. However, for Count V (both cases), the Board found violation
from June 15, 1993 through August 6, 1996, a period of 1,178 days.
As shown by the evidence supporting Counts VII-X (both cases), Parcel B of the Landfill
reached capacity on August 31, 1994. As
of April 30, 1997, Parcel B of the Landfill was
475,000 cubic yards overheight
129
,
so without question the violations continued through at least
that period, a span
of 973 days. However, there is no evidence that the overheight violations
were ever corrected. A 2000 survey indicated that the Parcel B remained over its permitted
capacity
130. As testified to by Illinois EPA Permit Engineer Christine Roque, the Landfill has
never notified the Agency
of any waste relocation, or submitted an application to update or
modify the contours
of the Landfill
'31
, so in all likelihood, the violations alleged in Counts VII-X
(both cases) still continue to this day. The extended duration of the violations should be
considered an aggravating factor in this case.
Gravity: The sheer number
of violations in these cases places a very high degree of
'28For example, on July 26,2001 the Board found CLC in violation of Count V for 1,178
days. The Act allows for maximum penalties
of $11 ,830,000.00 for this violation alone.
129See: Complainant's Exhibit 1(i), p. 20
130See: Respondent's Exhibit 11
'3ITr.,
12/2/08,
p.71
47
'-------------------------~
---
gravity on the violations. Frankly, it is hard to find any area of landfill regulation that was not
ignored and/or violated by CLC, Edward Pruim and Robert Pruim during this period. There are
failures to obtain permits, violations
of permits once obtained, ignoring permitted capacity
limitations, litter violations, leachate violations, repeated financial assurance violations, etc. The
people who caused, allowed, and ignored these violations are now trying to hide behind a shell
company, and escape the consequences
of their own actions and inaction. The Board's decision
in this case must prevent this from happening.
42(h)(2):
The presence or absence of due diligence on the part of the respondent in
attempting to comply with the requirements of this Act and regulations
thereunder or
to secure relief therefrom as provided by this Act.
[415
ILCS
5/42(h)(2)]
A full review of the evidence in the consolidated cases shows that none of the
Respondents demonstrated diligence in trying to comply with the Act and pertinent regulations.
Quite the opposite: The only people with the ability and authority to comply with the Act, i.e.
Edward Pruim and Robert Pruim, have ignored the requirements
of the law. As shown by the
evidence in this case (including their own testimony), Edward Pruim and Robert Pruim knew
of
the 1993 deadline for filing the SigMod Permit. They responded by acting in their own best
interests ... not filing the Permit application but instead seeing what kind
of deal they could
negotiate with the City
of Morris, while continuing to dump almost 1 million. cubic yards of
garbage into a noncompliant Landfill. Not diligent.
As sole operating officers
of the Company, they knew they had to upgrade financial
assurance in 1993.
They did so ... three years late. Not diligent.
As officers
of the Company who tracked annual waste disposal at the Landfill versus
~8
remaining capacity, and who submitted annual capacity reports to Illinois EPA, Edward Pruim
and Robert Pruim knew when they had
to shut down the landfill, but didn't. Not diligent.
Based on the facts in this case, the actions
of Community Landfill Company, Edward
Pruim, and Robert Pruim show a complete want
of diligence. This conclusion should act as an
aggravating factor in the
Board's assessment of penalty in this case.
42(h)(3):
Any economic benefits accrued by the respondent because of delay
in compliance with requirements, in which case the economic
benefits shall be determined by the lowest cost alternative
for
achieving compliance.
Edward Pruim, Robert Pruim, and Community Landfill Company saved a lot of money by
violating the Act-possibly more than $1,000,000.00 as
of the date of hearing.
At hearing, Complainant presented three witnesses on this issue: Christine Roque to
testify to savings from the late filed SigMod application and failure to relocate waste; Blake
Harris to testify to savings from failing
to file required financial assurance; and Gary Styzens to
put it all together from an accounting standpoint.
Ms. Roque is the Illinois
EPA Permit Engineer with responsibility for the Morris
Community Landfill. She is the person who reviews permit applications for testing
requirements and compliance with the regulations. Ms. Roque testified that upon filing the
Sigmod
Permit application (delayed three years by the Respondents inaction) additional testing
costs would have been incurred. Based on cost information later provided to Illinois EPA by the
Respondents, by filing their Permit application well after the due date, they avoided testing costs
in the amount of $44, 526.00 as of April 26, 1995
132
•
Her calculations even gave credit to their
variance petition, despite the fact that the Board and Appellate Court found that the Respondent's
132See: Complainant's Exhibit 18, p.2
49
late filing was not retroactive
133
.
Ms. Roque also testified to the Respondents' failure to relocate the overheight waste at
the Landfill to correct the violations in Counts VII-X (both cases). On April 30, 1997, the
Respondents notified Illinois EPA that the cost
of relocating the overheight waste was
$950,000.00
134
. As previously noted, the Respondents never notified the Agency of any waste
relocation, or submitted an application to update or modify the contours
of the Landfill
135 ,
and
have avoided the cost
of the waste relocation.
Blake Harris testified to the savings realized by the Respondents from failure to provide
the required amount
of financial assurance. Using the cost of the bonds eventually provided by
the Respondents on June 20, 1996 (2%
of face value, a cost confirmed at hearing by Edward
Pruim
I36
), Mr. Harris calculated that the Respondents had saved $47,871.33 as of June 20, 1996
by failing to provide the amount
of financial assurance required by their 1993 Permit
137
.
Illinois EPA Auditor Gary Styzens put it all together and brought the savings forward to
the present. He applied a varying Bank Prime Rate
of interest to calculate the present value of
133The SigMod permit was actually not filed until 1996. Complainant used the date of
variance filing solely to be conservative in its economic benefit estimate. The Board and
Appellate Court found that the late filing was not to be applied retroactively.
134Complainant's Exhibit 1
(f), p.20 (p.l1 on bottom of sheet)
135Tr.,
12/2/08,
p.7l
136Tr.,
12/4/08,
pp. 84-85
137Complainant's Exhibit 19. Note that during this period, the Respondent's had varying
amounts
of financial assurance on hand. Mr. Harris' testimony took into consideration the
changes in financial assurance during the period. Because the required amount was always
$1,342,500.00, the testimony and estimate are based on
2% of the difference between that
amount and the amount actually posted at the time.
50
the avoided costs, while giving credit to the Respondents for tax benefits for environmental
expenditures
138. The method he used was based on USEPA guidance documents, and is
intended to remove the economic benefit
of noncompliance
l39
.
Mr. Styzens estimated that the present value of the avoided expenditures, using the Bank
Prime Rate, and crediting all tax benefits to the Respondents, to be $1,486,079.00.
Of this
amount, $73,950.00 was attributable to avoided testing costs from failure to provide a timely
SigMod application (using the 1995 variance date), $72,336.00 was attributable to avoided
financial assurance costs, and $1,339,793 was attributable to avoided costs for relocation
of the
overheight
l40
.
Complainant is not seeking recovery
of all of the economic benefit in this case. First of
all, the Board is currently deliberating the appropriate remedy in
People v. Community Landfill
Company
&
City of Morris,
PCB 03-191. In that case, the State has asked the Board to order
full closure
of Parcel B, which will accomplish either relocation or permitting of any remaining
overheight. At that point the avoided cost for overheight will be recovered. However, the
avoided costs associated with the late SigMod permit submission, the unfunded financial
assurance, and the interest on delayed relocation should be recovered. Complainant believes that
its penalty request
of $250,000.00 Goint and several) will recover at least the majority of these
avoided costs, and therefore recover most
of the economic benefit from the Respondents'
noncompliance.
138Complainant's Exhibit 17, p.8
139Tr.,
12/2/08,
p. 144
14°Complainant's Exhibit 19,
p.l
51
42(h)(5):
The amount of monetary penalty which will serve to deterfurther
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;
Complainant believes a civil penalty of $250,000.00, joint and several against Edward
Pruim, Robert Pruim, and Community Landfill Company, will serve to deter future violations.
However, a penalty entered against Community Landfill Company alone will have no deterrent
val ue whatsoever.
From testimony at this hearing and the hearing in
PCB 03-191, Complainant has come to
the conclusion that CLC has few
if any remaining assets. Certainly the amount of money
remaining in
CLC's name is at the sole discretion of Edward Pruim and Robert Pruim, the
owners
of CLC. Complainant believes that a penalty entered solely a&ainst CLC will be
uncollectible, and have no deterrent value on the Pruims or any other person.
42(h)(5):
the number, proximity in time, and gravity of previously adjudicated
violations
of this Act by the respondent;
On February 16, 2006 , the Board granted partial summary judgment against CLC in case
PCB 03-191 for financial assurance violations at the Landfill. The Board has not yet issued its
Final Order in that case.
In 1989, Community Landfill Company received an Administrative Citation in the case
AC 89-6. The Administrative Citation related to uncovered waste from a previous operating day.
A penalty
of $500.00 was assessed.
42(h)(6):
Whether the respondent voluntarily self disclosed, in accordance with
subsection
(i) of this Section, the non-compliance to the Agency,'
Respondents did not voluntarily self-disclose the violations.
52
42(h)(7):
Whether the respondent has agreed to undertake a 'supplemental
environmental project
'" ..
No supplemental environmental project has been proposed by Respondents
XIII
ATTORNEY FEES AND COSTS
Complainant does not request the assessment of attorney fees and costs.
XIV
CONCLUSION
Based on the evidence and the arguments herein, Complainant requests that the Board
find the violations
of the Act and Board regulations as requested in Section XI (a) and XI (b),
assess a civil penalty
of Two Hundred Fifty Thousand Dollars ($250,000.00), jointly and
severally, against Respondents EDWARD PRUIM, ROBERT PRUIM, and COMMUNITY
LANDFILL COMPANY for the mUltiple violations
of the Act and Board regulations alleged in
Cases PCB 97-193 and PCB 04-207, and order such other relief as it deems appropriate
BY:
RESPECTFULLY SUBMITTED
PEOPLE OF THE STATE OF ILLINOIS
by
LISA MADIGAN,
Attorney General
of the State of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement! Asbestos
Litigation Division
ROSEMARIE CAZEAU,
Chief
Environmental Bureau North
CHRISTOPHER GRANT
JENNIFER V AN WIE
Environmental Bureau
53
Electronic Filing - Received, Clerk's Office, February 6, 2009
42(h)(7):
Whether the respondent has agreed to undertake a 'supplemental
environmental project
' ....
No supplemental environmental project has been proposed by Respondents
XIII
ATTORNEY FEES AND COSTS
Complainant does not request the assessment of attorney fees and costs.
XIV
CONCLUSION
Based on the evidence and the arguments herein, Complainant requests that the Board
find the violations
of the Act and Board regulations as requested in Section XI (a) and XI (b),
assess a civil penalty
of Two Hundred Fifty Thousand Dollars ($250,000.00), jointly and
severally, against Respondents EDWARD PRUIM, ROBERT PRUIM, and COMMUNITY
LANDFILL COMPANY for the multiple violations
of the Act and Board regulations alleged in
Cases PCB 97-193 and PCB 04-207, and order such other relief as it deems appropriate.
RESPECTFULL Y SUBMITTED
PEOPLE OF THE STATE OF ILLINOIS
by
LISA MADIGAN,
Attorney General
of the State of Illinois
MATTHEW
1. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE
CAZEA U,
Chief
Environmental Bureau North
53
BY:
C RISTOPHER GRANT
JENNIFER V AN WIE
Environmental Bureau
Assistant Attorneys General
69
W. Washington Street, #1800
Chicago,
IL
60602
(312)814-5388
(312)814-0609
54
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused to be served this 6
th
day
of February, 2009, the foregoing Complainant's Closing Argument and Post Hearing Brief, and
Notice
of Electronic Filing, upon the persons listed on said Notice by placing same in an
envelope bearing sufficient postage with the United States Postal Service located at 100
W.
Randolph, Chicago Illinois.
CHRISTOPHER GRANT
Electronic Filing - Received, Clerk's Office, February 6, 2009