BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
)
by
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
-vs-
)
)
)
EDWARD 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, May 18,2009, filed with the Office of the
Clerk
of the Illinois Pollution Control Board, by electronic filing, Complainant's Reply Brief, a
copy
of which is attached and herewith served upon you.
.
______________________ _
Electronic Filing - Received, Clerk's Office, May 18,2009
BY:
PEOPLE OF THE STATE OF ILLINOIS
ex rei.
LISA MADIGAN
Attorney General
of the
St~
rfIllinois /
/~~
g RlSTOPHER GRANT
Assistant Attorney General
Environmental Bureau
69 W. Washington St.,
#1800
Chicago, IL 60602
(312) 814-5388
Electronic Filing - Received, Clerk's Office, May 18,2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS, ).
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
Complainant,
-vs-
EDWARD 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 REPLY BRIEF
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, and hereby submits its Reply Brief.
I.
THE PRUIMS ARE PERSONALLY LIABLE FOR THE VIOLATIONS
ALLEGED AGAINST THEM
1
Electronic Filing - Received, Clerk's Office, May 18,2009
In evaluating whether Edward and Robert Pruim should be held liable for the violations
alleged in Case No. PCB
04-207, the Board should look to the pertinent Sections of the Illinois
Environmental Protection Act
("Act"), 415 ILCS 5/1
et seq.
(2006). Section 2 of the Act, 415
ILCS 5/2 (2006), states that it is the purpose of the Act" ... to assure that adverse effects upon
the environment are fully considered and borne
by those who cause them[.]" and directs that the
Act's terms and provisions
" .... be liberally construed so as to effectuate the purpose of the
Act..
.. ". As shown by the evidence, the majority of the violations in the consolidated cases Were
"caused" by Edward and Robert Pruim.
The Community Landfill Company
("CLC") offices were not located at the Morris
Community Landfill
("Landfill"), but in Crestwood and Riverdale Illinois, where Edward and
Robert Pruim's other businesses were also headquartered (the
"home office"). Dumping records
and Landfill Permits were kept at these locations, but not at the Landfill. The Landfill's
business operations, including obtaining dumping business, scheduling dumping with customers
and arranging credit, was also done at Crestwood and Riverdale, not at the Landfill.
Complainant has requested that the Board find that Edward and Robert Pruim were
personally and directly involved in the overheight, financial assurance, and late-filed Permit
violations, and therefore personally liable under the express provisions
of the Act and Illinois
case law
l
.
For the 'daily operation violations', Complainant has asked the Board to consider
applying the Responsible Corporate
Officer Doctrine, based on the particular facts of this case, to
find Edward and Robert Pruim liable for these violations.
IPeop/e
v.
CJR. Processing,
269 Ill. App. 3d 1013 (3d Dist. 1995) is most relevant
because
of the Landfill's location. The
CJR.
Court found that personal liability may attach for
'active participation or personal involvement'
in a violation.
2
Electronic Filing - Received, Clerk's Office, May 18,2009
A.
The Pruims were Personally and Directly Involved in the Overheight, Financial
Assurance,
and Late Permit Violations
1. The Landfill overheight violations have already been established
On October 3, 2002, the Board found Respondent Community Landfill Company
("CLC") liable for violations related to the dumping of waste outside of the Landfill's permitted
boundaries, i.e. above
580' above mean sea level ("MSL"). Notwithstanding the Board's
finding, the Respondents' claim that
" .... there has been absolutely no empirical proof of any kind
that Parcel B
of the landjill was actually jilled above 580 feet above mean sea level or other wise
jilled above its permitted capacity".
This claim is contrary to the Respondents' prior admissions
and the Board's findings, and must be rejected
2.
At hearing, substantial evidence was presented which not only corroborated the Board's
earlier finding, but proved the amount
of overheight dumping. The evidence shows that Edward
and Robert
Pruim knowingly continued to dump waste well after the Landfill had reached
capacity. These actions created the overheight, in violation
qfthe Act, Board regulations, and
the Landfill's
Permits. Landfill capacity reports for the years 1994 and 1995 (certified by
Edward
Pruim, Robert Pruim, and the Landfill's engineers) prove that Parcel B of the Landfill
had reached capacity in mid-1994. However, the evidence also shows that dumping continued
thereafter for at least another two
years3. The Respondents' 1996 Sig-Mod permit application
2In finding summary judgement on the overheight counts, the Board noted that
"Respondent concedes that waste has been deposited above the permitted levels although the
extent of the overheight is still at issue" 10/3/02 Order, p.13.
3The evidence from hearing proved that Parcel B reached capacity in August, 1994.
Respondents' 1997 permit submission
to Illinois EPA identified overheight as of July 1996, and
admitted that
"[w]aste receipts since the topographic survey date of July total 35,000 cubic yards
(Complainant's Exhibit 1
(f). Thus, dumping continued after July, 1996.
3
Electronic Filing - Received, Clerk's Office, May 18,2009
(signed and certified by Edward Pruim) contains an engineering diagram showing a substantial
portion
of the Landfill exceeded 580' MSL. The Respondents' 1997 Permit Addendum admits
that
475,000 cubic yards of overheight were present on Parcel B.
Respondents' continued claims of remaining capacity at the Landfill are frivolous, and
merely an attempt to avoid an appropriate civil penalty.
2.
Edward Pruim and Robert Pruim were personally responsible for the overheight
violations
Edward
Pruim and Robert Pruim made the decision to continue dumping at the Landfill,
despite their knowledge that
Parcel B had reached and exceeded capacity. Their personal
knowledge is proved by their certification
of the Landfill Capacity reports. The ,report submitted
on January
20, 1995 shows that as of April 1, 1994, remaining capacity amounted to only
264,290 cubic yards. Because
.
all dumping business was arranged
.
"at the home office" and not
at the Landfill, Edward and Robert Pruim had the obligation to ensure that no more than 264,290
yards worth
of waste was accepted, and that the Landfill subsequently be closed. All records of
dumping and copies of permits (which would show the permitted limits) were kept at the "home
office",
not at the Landfill. Site Manager James Pelnarsh testified that he had no knowledge of
the details of the Permits4. As sole owners ofCLC, only Edward and Robert Pruim had the
authority to shut down operations5. Instead, they decided to continue dumping on
Parcel B
through at least July, 1996. This decision, made by Edward and Robert
Pruim, caused the
overheight violations at the Landfill.
4Tr.,
12/4/08,
p.14
5In response to Complainant's questions, Landfill Site Manager James Pelnarsh stated
that only
"Bob or Ed or IEP A" had authority to close the Landfill. Tr.,
12/4/08,
p. 25
4
Electronic Filing - Received, Clerk's Office, May 18,2009
The Respondents attempt to argue that because Illinois EPA inspectors did not find
Edward or Robert
Pruim at the Landfill, there is no evidence of personal and direct involvement
6
•
Whether or not the Illinois EPA inspectors met the Pruims at the Landfill is irrelevant. The
question is, did the
Pruims have control over and make the decisions to allow the violation? The
answer is, emphatically, yes, they alone had control and they alone made the decisions.
Only
Edward and Robert Pruim could have decided to close the Landfill and only Edward and Robert
Pruim could have decided whether to stop accepting waste. Because they failed to close down
dumping operations, they are personally and directly responsible for the overheight violations.
In advancement
of the purposes of the Act, they must be held responsible.
3.
Edward and Robert Pruim were personally responsible for the Financial
Assurance violations
Similarly, the
Pruims' personally caused or allowed the financial assurance violations in
this matter. As sole owners, the failure to expend necessary resources for financial assurance
ultimately benefitted only them? The required financial assurance was listed in the Landfill's
permits, which were kept at the
"home office", not at the Landfill. Only the Pruims had the
authority to decide to continue to accept waste. They decided to continue even though they
knew that the Permit-required financial assurance was not in place8. Because, as admitted at
6S
ee
: e.g.,
Response, p. 19
? The Pruims provided personal guarantees for the Landfill's financial assurance (Tr.,
12/4/08,
p.41). Therefore, they were personally at risk for the amount of financial assurance
provided. Moreover, as sole owners, the cost savings realized by the delay in posting the correct
amount accrued to them.
8Either Edward or Robert
Pruim reviewed and signed all Landfill Permit applications, and
were therefore aware
of the Permit requirements. See: Complainant's Exhibits lea), led).
5
Electronic Filing - Received, Clerk's Office, May 18,2009
hearing, they were the only persons with the authority to increase financial assurance
9
,
the failure
to upgrade financial assurance was a personal decision, and therefore the violations were
personal violations.
The Board granted summary judgment against CLC on all financial assurance counts, but
ordered one factual issue to be determined at hearing: the date that the Landfill's gas collection
system began operation. As described in Complainant's
Post-Hearing Brief, Mr. Pelnarsh
admitted to inspector Christine Kovasznay that the system was operating on March 31, 1999,
well before the required additional financial assurance was provided. This admission, which
was memorialized in an inspection report made soon thereafter, is inherently more reliable than
Mr.
Pelnarsh's denial in an affidavit prepared, after the fact, for the purpose oflitigation
JO
•
The Board must find that Edward and Robert Pruim were personally and directly
involved in the decision to continue waste operations without required financial assurance, and
therefore personally and directly involved in the violations.
4.
The Pruims were personally and directly involved in the late-filed SigMod Permit
Violations
The Board has already found CLC in violation for failure to file its SigMod
Permit
application until almost three years past the deadline. The Board should also find that Edward
and Robert
Pruim were actively and personally involved in this violation.
As described in detail in Complainant's
Post-Hearing Brief the Pruims chose to delay
9Tr.,
12/4/08,
pp. 73-74
IOMr. Pelnarsh testified that he was not aware of Permit details and that copies of Landfill
Permits were not kept at the Landfill. When he made the statements to Inspector Kovasznay, he
would have not known of the financial assurance requirements in the Permits, and therefore
could not known that he was admitting a violation by his employer.
6
Electronic Filing - Received, Clerk's Office, May 18,2009
filing the SigMod application while negotiating with the City of Morris for more dumping space.
However, they also decided to continue ongoing dumping operations in the interim. Because
only they had the authority to continue or stop operations, this decision, which caused the
violation was personal. Edward and Robert
Pruim were personally and directly liable for the
late-filed SigMod violations
II.
None of the cases cited by the Pruims support their denials of personal liability for the
overheight, financial assurance, or late-filed
Permit violations
l2
. Although courts have held that
it is not required for a corporate officer to 'physically commit' a violation to be held liable
l3
the
Pruims did, in fact, personally 'commit' the violations by failing to close the Landfill when at
capacity, failing to provide financial assurance, and failing to apply for the SigMod permit.
B.
The Board Should Apply the Responsible Corporate Officer Doctrine for
Operational Violations
As argued in Complainant's Post-Hearing Brief, based on the facts of this case, the Board
should consider applying the Responsible Corporate
Officer doctrine, and find the Pruims
personally liable for the operational violations at the Landfill. The evidence shows that the
Pruims were responsible for all finances, permits, arrangements with the Landfill's owner, and
that they controlled the amount
of material disposed at the Landfill. Dumping records and
I I
Complainant has asked to Board to reverse a Hearing Officer ruling and consider the
evidence contained in Complainant's Exhibit 27. The information contained therein is highly
relevant on the issue
of personal liability and motive for continued Landfill operations in
violatIon
of the Act.
12Respondents claim that the State
"ignores"
People v. Peteo Petroleum
(363 Ill. App.
613), but fails to note that this case involved violations
of the Oil and Gas Act, 225 ILCS 725
et
seq.,
and not the Environmental Protection Act.
I3People v. Agpro, 345 Ill. App. 3d 1011, 1018 (2d Dist. 2004)
7
Electronic Filing - Received, Clerk's Office, May 18,2009
permits were kept at their offices in Crestwood and Riverdale, not at the Landfill itself.
The
Pruims argue that Site Manager James Pelnarsh was responsible for day-to-day
operations and there was
"no directive from Robert or Edward Pruim to Jim Pelnarsh to place
waste above permitted
capacity"
14. Essentially the Pruims are attempting to shift liability to Mr.
Pelnarsh, a 70 year old man with only a high school education, who:
- had no control over finances;
- was not provided with dumping records by the
Pruims;
-did not arrange for the waste disposal at the Landfill; and
-had no knowledge
of the details of the Landfill's Permits (and therefore had no
idea what the Landfill's 'permitted capacity' was).
The Board has already found that CLC is liable for most
of the operating violations.
Robert and Edward
Pruim were the only persons with the authority and wherewithal to,prevent
them. CLC is a small company, not a huge organization.
It
had only two stockholders, Edward
and Robert
Pruim, who both owned the company and served as its sole officers. Allowing the
Pruims to escape liability solely because of the concurrent existence of a corporation that they
controlled would defeat the express purpose
of the Act, i.e to "assure that adverse effects upon
the environment are fully considered and borne by those who cause
them."
>
The Board should seriously consider applying the Responsible Corporate Officer
Doctrine to find Edward and Robert Pruim l.iable for causing or allowing the multiple and
repeated daily operating violations at the Landfill.
II.
THE EVIDENCE STRONGLY SUPPORTS THE DAILY OPERATING
VIOLATIONS
14Response, p.20
8
Electronic Filing - Received, Clerk's Office, May 18,2009
In its Post-Hearing Brief, Complainant provides overwhelming support for a finding of
liability for the 'daily operating violations' alleged in the consolidated complaints
l5
•
There is no
need to completely restate these arguments, but Complainant directs the Board to the following
facts, which were established at hearing:
1.
Complainants allegations regarding mismanaged refuse and litter (Count I, both
cases) is supported by the personal observations and inspection reports
of two Illinois EPA
inspectors on five occasions between 1994 and 1999. This evidence not only supports the
violations, but also supports a finding against Edward and Robert
Pruim personally. Clearly, the
Pruims, who had sole control over Landfill management and finances, allowed mismanagement
of waste for at least five years.
2.
Violations related to leachate seeps and leachate in waters of the State (Counts II and
VI, both cases), are supported by Inspector Weritz's personal observations on three separate
occasions, and further supported by inspection reports made soon after each inspection.
Included are his observations regarding foul odor and unnatural color in waters
of the State.
3.
The illegal disposal of landscape waste (Count III both cases), and used tires (PCB
97-193, Count XIII; PCB 04-207, Count XII) have already been found to be violations by CLC.
However, the evidence at hearing clearly shows that Edward
Pruim and Robert Pruim should also
be held liable. As testified to by James
Pelnarsh, he did not arrange for dumping business, but
rather it was done at the
'home office'. The Board should find that Edward and Robert Pruim
arranged for the illegal disposal of landscape waste and used tires.
15The 'daily operation violations' are PCB 97-193, Counts I, II, III, VI, XIII and PCB 04-
207,
C;:ounts I, II, III, VI, XII
9
Electronic Filing - Received, Clerk's Office, May 18,2009
III.
CONCLUSION
Effective regulation of municipal solid waste landfills is a critical element of the
management
of waste in Illinois. The privilege of conducting landfill operations is conditioned
on full compliance with federal and State regulations, and Illinois EPA-issued permits.
Therefore, the complete and utter failure
of the Respondents to comply with the Act, regulations,
and the Landfill's
Permits between 1993 and 2000 is astonishing. As alleged by Complainant,
the Respondents failed to obtain updated permits, violated multiple conditions
of permits already
in place, grossly exceeded the permitted capacity
of Parcel B, and failed to provide financial
assurance sufficient to ensure that the Landfill did not present a future risk to the environment.
The Board has already found CLC liable for many
of the alleged violations, but as shown
by the evidence, the violations were also the result of the personal and direct actions (and
inaction)
of Edward and Robert Pruim. In accordance with the express purposes of the Act, the
Board must hold Edward and Robert
Pruim responsible.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
request that the Board find the Respondents in violation as requested by Complainant in its
Post-
Hearing Brief, 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'reliefas it deems
appro'priate.
10
Electronic Filing - Received, Clerk's Office, May 18,2009
BY:
RESPECTFULL Y
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
vironmental Bureau
AssIstant Attorney General
69 W. Washington Street,
#1800
Chicago, IL 60602
(312)814-5388
11
Electronic Filing - Received, Clerk's Office, May 18,2009
CERTIFICA TE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused to be served this 18
th
day
of May, 2009, the foregoing Complainant's Reply 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 Illin is.
CHRISTOPHER GRANT
Electronic Filing - Received, Clerk's Office, May 18,2009
