ILLINOIS POLLUTION CONTROL BOARD
August 20, 2009
ORDER

ILLINOIS POLLUTION CONTROL BOARD

August 20, 2009

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

COMMUNITY LANDFILL COMPANY,

INC,

Respondent.

______________________________________

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

EDWARD PRUIM and ROBERT PRUIM,

CHRISTOPHER J. GRANT AND JENNIFER VAN WIE OF THE OFFICE OF THE

ATTORNEY GENERAL APPEARED ON BEHALF OF THE PEOPLE OF THE STATE OF

ILLINOIS.

MARK A. LAROSE OF LAROSE & BOSCO, LTD. AND CLARISSA Y. CUTLER OF THE

LAW OFFICES OF CLARISSA Y. CUTLER APPEARED ON BEHALF OF THE

RESPONDENTS;

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

SUMMARY OF THE OPINION

The Office of the Attorney General, on behalf of the People of the State of Illinois

(People) filed two separate enforcement actions, which were consolidated by the Board at the

request of the parties. The first case brought in 1997, with amended complaints filed in 1998,

and 1999, was filed against Community Landfill Company, Inc. (CLC). In 2004, the People

brought a second case against Edward Pruim and Robert Pruim (collectively the Pruims), as

owners of CLC. CLC operates a permitted landfill, known as Morris Community Landfill (the

site or landfill), located at 1501 Ashley Road in Morris, Grundy County. The approximate 119-

acre site consists of two parcels, Parcel A and Parcel B. Edward Pruim and Robert Pruim are the

sole shareholders and officers in CLC.

The Illinois Environmental Protection Agency (Agency) conducted several inspections of

the landfill operated by respondents. The complaints allege multiple violations of the

Environmental Protection Act (415 ILCS 5/1

et. seq.

(2008))

as well as the Board’s landfill

regulations and permit conditions based on the observations of the inspectors as well as the

reports and filings provided to the Agency.

In ruling on two motions for summary judgment, the Board previously adjudicated CLC

in violation of the Act and Board regulations as alleged in Counts III (landscape waste), IV

(inadequate financial assurance), Count V (failed to timely file significant modification permit),

Counts VII, VIII, IX, and X (daily operations at the site), Count XIII (waste tires), Count XVI

(erosion), Count XIV (temporary fencing), Count XIX (in part financial assurance), and Count

XXI (revised cost estimates).

See

pgs 4-6. The Board finds today that CLC is also in violation

of the Act and Board regulations as alleged in Count I (refuse and litter) (

see

pgs 28-29), Count

II (leachate) (

see

pg 30), Count VI (water pollution) (

see

pgs 31-32), Count XV (gas

management system) (

see

pg 34), Count XVII (improper use of leachate) (

see

pgs 34-35), and

Count XIX (remaining allegations) (

see

pg 33). The Board dismisses Count XX (improper use

of leachate) (

see

pg 35). Thus, the Board finds CLC violated numerous sections of the Act and

Board regulations as alleged in a total of 17 counts.

The Board declines to apply the “responsible corporate officers doctrine” and instead

reviews the record to determine whether the Pruims had personal involvement or active

participation in acts which lead to the violations (

see

pg 38).

See

People v. C.J.R. Processing,

Inc., 269 Ill. App. 3d 1013, 647 N.E.2d 1035 (3rd dist. 1995). The Board finds that the Pruims

did not have active participation and were not actively involved in the actions which resulted in

the violations alleged in Counts I, II, III, VI, and XII (daily operations) (

see

pg 41) and the Board

therefore dismisses those counts as alleged against the Pruims. The Board does find personal

involvement or active participation in acts which lead to the violations in Count V (significant

modification permit) (

see

pgs 42-43), Count IV and XVII (financial assurance) (

see

pg 44, 45),

Counts VII, VIII, IX and X (overheight) (

see

pg 48), and Count XIX (closure estimates) (

see

49). Thus the Board finds that the Pruims violated multiple sections of the Act and Board

regulations as alleged in eight counts.

The Board finds that the Section 33(c) factors weigh both for and against the respondents.

See

pgs 50-52. The Board finds that the character and degree, social and economic value, and

technical practicability and economic reasonableness of compliance weigh against respondents.

The Board finds that the suitability or unsuitability of the source and any subsequent compliance

weigh neither for nor against the respondents. The Board finds that the Section 42(h) factors

weigh in aggravation of a penalty or do not impact a penalty.

See

pgs 52-55. The Board finds

that the duration and gravity, economic benefit and deterrence weigh in aggravation of a penalty.

The Board finds that due diligence, prior violations and disclosure weigh neither in mitigation or

All citations to the Act will be to the 2008 compiled statutes, unless the section at issue has

been substantively amended in the 2008 compiled statutes.

aggravation. Based on the statutory factors and the evidence in the record the Board finds that a

civil penalty of $250,000 will aid in the enforcement of the Act, recoup the economic benefit

accrued, and deter violations. Therefore the Board finds that CLC and the Pruims are jointly and

severally liable for the $250,000 penalty.

BACKGROUND FOR PCB 97-193

On May 1, 1997, the People filed an initial six-count complaint alleging that CLC

violated various sections of the Act (415 ILCS 5/1

et seq

. (2008)) and the Board’s landfill

regulations (35 Ill. Adm. Code 807). Specifically the complaint included allegations that CLC

allowed uncovered refuse, leachate seeps, and landscape waste at the landfill. On April 3, 1998,

the People filed an amended complaint adding Counts VII through X. These counts relate to the

depositing of excess waste in Parcel B at elevations above the permitted height. On November

24, 1999, a second amended complaint was filed by the People adding Counts XI through XXII.

These additional counts include further allegations that the improper handling of asbestos and

improper disposal of waste tires violated the Act and Board’s regulations. Counts XI through

XXII also include allegations that several permit provisions were violated.

On July 31, 2000, the People filed a partial motion for summary judgment (concerning

Counts V and XII) and on October 30, 2000, CLC filed a cross-motion for summary judgment.

On April 5, 2001, the Board entered an order granting the People’s motion for summary

judgment on Count V, but denying both motions for summary judgment on Count XII and

directing the parties to hearing on Count XII and the issue of penalties for Count V. People v.

Community Landfill Company, Inc., PCB 97-193 (Apr. 5, 2001). On July 26, 2001, the Board

granted a motion to reconsider the April 5, 2001 order. In the order of July 26, 2001, the Board

denied the People’s motion for summary judgment on Count XII and granted CLC’s motion for

summary judgment on Count XII.

See

, People v. Community Landfill Company, Inc.

, PCB 97-

193 (July 26, 2001) and People v. Community Landfill Company, Inc.

, PCB 97-193 (Aug. 23,

2001).

On October 15, 2001, the People filed another partial motion for summary judgment. On

March 1, 2002, CLC filed a cross-motion for partial summary judgment. On May 6, 2002, the

People filed a response and on June 10, 2002, CLC filed a reply.

On October 3, 2002, the Board entered an order granting the People’s motion for partial

summary judgment in part and denying the motion in part. The Board also granted CLC’s

motion for partial summary judgment in part and denied the motion in part. Specifically, the

Board found that CLC violated the Act and Board regulations as specified in Counts III, IV, VII,

VIII, IX, X, XIII, XIV, XVI, XXI, and in part on Count XIX of the complaint. The Board

directed the parties to proceed to hearing to present evidence on the appropriate penalty to be

levied against CLC for those violations. In addition, the parties proceeded to hearing on Counts

I, II, VI, XV, XVII, XX, and in part on Count XIX to determine the liability of CLC. The Board

dismissed Counts XI, XVIII, and XXII of the second amended complaint.

On December 5, 2003, the People filed a motion for leave to file a third amended

complaint and on January 30, 2004, CLC filed a response in opposition to the third amended

complaint. On March 18, 2004, the Board found that the third amended complaint would

prejudice the other parties, was not timely, and that the People previously had the opportunity to

amend the complaint. Because the right to amend a complaint is not absolute, the Board found

that the third amended complaint should not be accepted and the Board struck the third amended

complaint. The Board further directed the matter to hearing expeditiously.

On February 17, 2005 on a motion by the Pruims to which the People did not object, the

Board reluctantly granted a motion to consolidate PCB 97-193 with PCB 04-207.

PCB 97-193 Violations Found on Summary Judgment

Count III

Count III of the complaint

alleges that CLC was landfilling landscape waste during

inspections conducted on August 18, 1993 and April 7, 1994 in violation of Section 22.22(c) of

the Act (415 ILCS 5/22.22(c) (2008)). 97Comp. at 10. On October 3, 2002, the Board found

that CLC violated Section 22.22(c) of the Act (415 ILCS 5/22.22(c) (2008)).

See

People v.

Community Landfill Company, Inc., PCB 97-193 (Oct. 3, 2002)).

Count IV

Count IV of the complaint alleges that CLC failed to provide adequate financial

assurance in violation of Sections 21(d)(2) and 21.1 of the Act (415 ILCS 5/21(d)(2) and 21.1

(2008)) and 35 Ill. Adm. Code 807.601(a) and 807.603(b)(1) of the Board’s rules. 97Comp. at

13. More specifically, the complaint alleges that CLC’s supplemental permit dated April 20,

1993, required that financial assurance in the amount of $1,342,500 be maintained and CLC

failed to increase the total amount of financial assurance within 90 days of the permit issuance.

. The complaint further alleges that CLC provided a performance bond on June 20, 1996.

On October 3, 2002, the Board found that CLC violated Sections 21(d)(2) and 21.1 of the Act

(415 ILCS 5/21(d)(2) and 21.1 (2008)) and 35 Ill. Adm. Code 807.601(a) and 807.603(b)(1) of

the Board’s rules.

See

People v. Community Landfill Company, Inc., PCB 97-193 (Oct. 3,

2002)).

Count V

Count V of the complaint alleges that CLC failed to file a request for a significant

modification permit in a timely manner in violation of Section 21(d)(2) of the Act (415 ILCS

5/21(d)(2) (2008)) and Section 814.104 of the Board’s landfill rules (35 Ill. Adm. Code

814.104). 97Comp. at 15. On April 5, 2001, the Board found that CLC violated Sections

21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)).

See

People v. Community Landfill Company,

Inc., PCB 97-193 (Apr. 5, 2001)).

References to the complaint in PCB 97-193 are to the second amended complaint filed on

November 24, 1999 and will be cited as “97Comp. at __” in this order.

Count VII, VIII, IX, AND X

Counts VII, VIII, IX, and X involve the same facts. Specifically, the complaint alleges

that CLC has deposited refuse above the permitted elevations for Parcel B. 97Comp. at 21. In

so doing, the complaint alleges that CLC has caused or allowed violation of Sections 21(o)(9)

(Count VII), 21(d)(1) (Count VIII and X), and 21(a) (Count IX) of the Act (415 ILCS 5/21(a),

21(d)(1) and 21(o)(9) (2008)). On October 3, 2002, the Board found that CLC violated Sections

21(o)(9) (Count VII), 21(d)(1) (Count VIII and X), and 21(a) (Count IX) of the Act (415 ILCS

5/21(a), 21(d)(1) and 21(o)(9) (2008)).

See

People v. Community Landfill Company, Inc., PCB

97-193 (Oct. 3, 2002)).

Count XIII

The complaint alleges that on July 28, 1998, CLC was mixing waste tires with municipal

waste in violation of Section 55(b-1) of the Act (415 ILCS 5/55(b-1) (2008)). On October 3,

2002, the Board found that CLC violated Section 55(b-1) of the Act (415 ILCS 5/55(b-1)

(2008)).

See

People v. Community Landfill Company, Inc., PCB 97-193 (Oct. 3, 2002)).

Count XVI

The complaint alleges that CLC violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2008)) and special condition number nine of supplemental permit 1996-240-SP.

97Comp. at 45. Specifically, the allegation arose from a March 31, 1999 inspection where

“erosion, ponding and cracks over one inch wide at the facility, [and] no vegetative cover” was

observed. 97Comp. at 44. Special condition nine of permit number 1996-240-SP provides:

While the site is being developed or operated as a gas control or extraction

facility, corrective action shall be taken if erosion or ponding are observed, if

cracks greater than one inch wide have formed, if gas, odor, vegetative or vector

problems arise, or if leachate popouts or seeps are present in the areas disturbed

by construction this gas collection facility. 97Comp. at 44.

On October 3, 2002, the Board found that CLC violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2008)) and special condition number nine of supplemental permit 1996-240-SP.

See

People v. Community Landfill Company, Inc., PCB 97-193 (Oct. 3, 2002)).

Count XIV

The complaint alleges that CLC failed to use a temporary fence to prevent blowing litter

on March 31, 1999. 97Comp. at 39-40. The complaint alleges that the failure to use the fence

resulted in violations of Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2008)) and special

condition 13 of permit number 1989-005-SP. On October 3, 2002, the Board found that CLC

violated Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2008)) and special condition 13 of

permit number 1989-005-SP.

See

People v. Community Landfill Company, Inc., PCB 97-193

(Oct. 3, 2002)).

Count XIX

The complaint alleges that CLC violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2008)) and special condition number thirteen of supplemental permit 1996-240-SP.

97Comp. at 52. The complaint alleges that CLC was required to provide financial assurance

within 90 days from October 24, 1996, in the amount of $1,431,360 and to increase the amount

to $1,439,720 prior to the operation of the gas extraction system. 97Comp. at 51. The complaint

alleges that CLC failed to provide such increased financial insurance until September 1, 1999.

97Comp. at 51-52. On October 3, 2002, the Board found that CLC violated Section 21(d)(1) of

the Act (415 ILCS 5/21(d)(1) (2008)) and special condition number thirteen of supplemental

permit 1996-240-SP, in part.

See

People v. Community Landfill Company, Inc., PCB 97-193

(Oct. 3, 2002)).

Count XXI

The complaint alleges that CLC violated Section 21(d)(2) of the Act (415 ILCS

5/21(d)(2) (2008)) and 35 Ill. Adm. Code 807.623(a) by failing to provide a revised cost

estimate. 97Comp. at 57. The complaint alleges that pursuant to a supplemental permit issued

on April 20, 1993, CLC was required to provide a revised cost estimate to the Agency by

December 26, 1994.

. The complaint alleges that CLC did file a cost estimate on July 26,

1996.

. On October 3, 2002, the Board found that CLC violated Section 21(d)(2) of the Act

(415 ILCS 5/21(d)(2) (2008)) and 35 Ill. Adm. Code 807.623(a).

See

People v. Community

Landfill Company, Inc., PCB 97-193 (Oct. 3, 2002)).

Remaining Counts for Hearing on Violations in PCB 97-193

Count I

Count I of the complaint argues that CLC failed to adequately manage refuse and litter at

the landfill site in violation of Sections 21(d)(2), 21(o)(1), (5) and (12) of the Act (415 ILCS

5/21(d)(2), 21(o)(1), (5) and (12) (2008)) and 35 Ill. Adm. Code 807.306. 97Comp. at 6. The

complaint alleges that these violations occurred during inspections at the landfill on April 7,

1994, March 22, 1995, May 22, 1995, July 28, 1998, November 19, 1998, March 31, 1998, May

11, 1999, and July 20, 1999. 97Comp. at 4. The complaint asserts that on three separate

inspections litter was observed in the perimeter ditch and at least once in the retention pond.

97Comp. at 4. Also on one occasion leachate seeps had exposed previously covered refuse,

according to the allegations in the complaint.

. On two occasions the Agency inspector

alleged that there was uncovered refuse from the day before and on two other occasions the

On Count XIX, CLC concedes that financial assurance requirements were not met in that CLC

failed to increase the financial assurance by January 22, 1997. However the Board denied the

motion for summary judgment as to the failure to increase the financial assurance prior to

operation of the gas management system. Thus this count appears in both the summary

judgment finding of violations section and the hearings on violations.

inspector maintained that the landfill was accepting waste and there was uncovered refuse,

including bags of waste material containing asbestos and blowing litter. 97Comp. at 4-5.

Count II

Count II of the complaint alleges that CLC caused or allowed violations of Sections

21(d)(2) and 21(o)(2) and (3) of the Act (415 ILCS 5/21(d)(2) and 21(o)(2) and (3) (2008)) and

35 Ill. Adm. Code 807.314(e) of the Board regulations, by allowing leachate to exit the landfill

boundaries and enter waters of the State. 97Comp. at 8. Specifically the complaint alleges that

during the inspections on April 7, 1994, March 22, 1995, and May 22, 1995, the Agency

inspector observed leachate seeps. 97Comp. at 7. The complaint alleges that CLC failed to take

sufficient action to prevent leachate seeps observed at the site and in the north perimeter ditch.

97Comp. at 7. The north perimeter ditch eventually drains into the Illinois River.

Count VI

Count VI of the complaint alleges that CLC caused or allowed water pollution in

violation of Sections 12(a) and 21(d)(2) of the Act (415 ILCS 5/12(a) and 21(d)(2) (2008)) and

Section 807.313 of the Board’s landfill regulations. 97Comp. at 18. The complaint alleges that

these violations occurred during an inspection at the landfill on May 22, 1995. 97Comp. at 16.

Specifically, the complaint alleges that CLC allowed leachate to flow into a ditch on site which

eventually flows into the Illinois River. 97Comp. at 18.

Count XV

Count XV of the complaint alleges that CLC violated Section 21(d)(1) of the Act (415

ILCS 5/21(d)(1) (2008)) and special condition one of permit number 1996-240-SP. 97Comp. at

40. Specifically, the complaint alleges that special condition one required CLC to provide to the

Agency specific information regarding the gas management system prior to the operation of the

system and CLC failed to do so. 97Comp. at 39-40.

Count XVII

The complaint alleges that CLC violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2008)) and special condition number eleven of supplemental permit 1996-240-SP.

97Comp. at 47. Specifically, the complaint alleges that on March 31, 1999, and July 20, 1999,

CLC pumped leachate into new cells for added moisture and did not properly dispose of the

leachate at a permitted facility. 97Comp. at 47. Special condition eleven of permit number

1996-240-SP provides:

Condensate from the gas accumulations system, and leachate pumped and

removed from the landfill shall be disposed at an IEPA permitted publicly owned

treatment works, or a commercial treatment or disposal facility. The condensate

shall be analyzed to determine if hazardous waste characteristics are present. A

written log showing the volume of liquid discharged to the treatment facility each

day by the landfill will be maintained at the landfill. This log will also show the

hazardous waste determination analytical results. 97Comp. at 46-47.

Count XIX

The complaint alleges that CLC violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2008)) and special condition number thirteen of supplemental permit 1996-240-SP.

97Comp. at 52. The complaint alleges that CLC was required to provide financial assurance

within 90 days from October 24, 1996, in the amount of $1,431,360 and to increase the amount

to $1,439,720 prior to the operation of the gas extraction system. 97Comp. at 51. The complaint

alleges that CLC failed to provide such increased financial insurance until September 1, 1999.

97Comp. at 51-52.

Count XX

The complaint alleges that CLC violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2008)) and special condition number seventeen of supplemental permit 1989-005-SP.

97Comp. at 54. Specifically, the complaint alleges that on March 31, 1999 and July 20, 1999

CLC pumped leachate, a waste, into areas, which had not been certified or approved by the

Agency in violation of special condition number seventeen. Special condition seventeen of

permit number 1989-005-SP provides:

Prior to placing waste material in any Area, a registered professional engineer

shall certify that the floor and/or sidewall liner or seal has been developed and

constructed in accordance with an approved plan and specifications . . . Such data

and certification shall be submitted to the Agency prior to placement of waste in

the areas referenced above. No wastes shall be placed in those areas until the

Agency has approved the certifications and issued an Operating Permit. 97Comp.

at 54.

BACKGROUND ON PCB 04-207

On May 21, 2004, People filed a nineteen-count complaint against the Pruims alleging

numerous violations of the Act and the Board’s regulations. The Board docketed that case as

PCB 04-207. Robert Pruim is the President of CLC and Edward Pruim is the Secretary. The

allegations in the complaint revolve around the Pruims’ management, operation, and ownership

of CLC and the landfill. On June 3, 2004, the Board accepted the complaint for hearing.

On September 10, 2004, the Pruims filed a motion to dismiss the complaint in PCB 04-

207 along with a memorandum in support of the motion. The People filed a response on October

4, 2004, and the Pruims filed a reply on October 18, 2004. In a November 4, 2004 order, the

Board denied the motion to dismiss except as to Count XI. The Board granted the motion to

dismiss Count XI and directed the parties to hearing on the remaining counts.

On February 17, 2005, the Board reluctantly granted a motion to consolidate PCB 04-207

and PCB 97-193.

On March 17, 2005, the Board granted People’s motion to strike an alleged affirmative

defense in PCB 04-207 finding that the complaint is barred because the People failed to state a

claim for personal liability under the Act. The Board found that the second affirmative defense

should be stricken as the alleged affirmative defense attacks the sufficiency of the claims and

therefore is not an affirmative defense.

On January 13, 2006, the Pruims, each filed a motion for summary judgment and a

memorandum in support of the motion only to the case in PCB 04-207. The People responded

on February 6, 2006, and included a motion seeking voluntary dismissal of certain counts. On

April 20, 2006, the Board found that there were genuine issues of material fact and therefore

summary judgment was not appropriate and the Board denied each of the Pruims’ motions for

summary judgment in PCB 04-207. The Board granted People’s motion to dismiss certain

counts of the complaint and counts XIII, XIV, XV, XVI, and XVIII were dismissed in PCB 04-

207.

Remaining Counts for Hearing on Violations in PCB 04-207

Count I

Count I of the complaint

alleges that the Pruims failed to adequately manage refuse and

litter at the landfill site in violation of Section 21(d)(2), 21(o)(1), (5) and (12) of the Act (415

ILCS 5/21(d)(2), 21(o)(1), (5) and (12) (2008) and Section 807.306 of the Board landfill

regulation s (35 Ill. Adm. Code 807.306). 04Comp. at 7. The complaint alleges that these

violations occurred during inspections at the landfill on April 7, 1994, March 22, 1995, May 22,

1995, July 28, 1998, November 19, 1998, March 31, 1999, May 11, 1999, and July 20, 1999.

04Comp at 4-5. The complaint asserts that on three separate inspections litter was observed in

the perimeter ditch and at least once in the retention pond. 04Comp. at 4. Also on one occasion

leachate seeps had exposed previously covered refuse, according to the allegations in the

complaint.

. On two occasions the Agency inspector alleged that there was uncovered refuse

from the day before and on the two other occasions the inspector maintained that the landfill was

accepting waste and there was uncovered refuse, including bags of waste material containing

asbestos and blowing litter. 04Comp. at 4-5.

Count II

Count II of the complaint alleges that the Pruims caused or allowed violations of Section

21(d)(2), (o)(2) and (3) of the Act (415 ILCS 5/21(d)(2), (o)(2) and (o)(3) (2008)) and Section

807.314(e) of the Board’s landfill regulations (35 Ill. Adm. Code 807.314) by allowing leachate

to exit the landfill boundaries and enter waters of the State. 04Comp. at 8-9. The complaint

alleges that these violations occurred during inspections at the landfill on April 7, 1994, March

22, 1995, May 22, 1995, July 28, 1998, November 19, 1998, March 31, 1998, May 11, 1999, and

July 20, 1999. 04Comp. at 6-7. Specifically, the complaint alleges that the Pruims failed to take

sufficient action to prevent leachate seeps occurring at the landfill and to prevent the leachate

The complaint in PCB 04-207 will be cited as “04Comp.” throughout this opinion and order.

seeps from exiting the landfill. 04Comp. at 8-9. The complaint alleges that the Pruims allowed

the leachate seeps to leave the landfill and enter the waters of the State. 04Comp. at 9.

Count III

Count III of the complaint alleges that the Pruims were landfilling landscape waste in

violation of Section 22.22(c) of the Act (415 ILCS 5/22.22(c) (2008)). 04Comp. at 11. The

complaint alleges that during inspections at the landfill on August 18, 1993, April 7, 1994, and

July 28, 1998, the Agency inspector observed landscape waste in the landfill area. 04Comp. at

10.

Count IV

Count IV of the complaint alleges that the Pruims failed to provide adequate financial

assurance in violation of Sections 21(d)(2) and 21.1(a) of the Act (415 ILCS 5/21(d)(2) and

21.1(a) (2008)) and Sections 807.601(a) and 807.603(b)(1) of the Board’s landfill regulations (35

Ill. Adm. Code 807.601(a) and 807.603(b)(1)). 04Comp. at 13-14. More specifically, the

complaint alleges that CLC’s supplemental permit dated April 20, 1993 required that financial

assurance in the amount of $1,342,500 be maintained and the Pruims failed to increase the total

amount of financial assurance within 90 days of the permit issuance. 04Comp. at 12-13. The

complaint further alleges that the Pruims provided a performance bond on June 20, 1996.

04Comp. at 13.

Count V

The complaint alleges that the Pruims violated Section 21(d)(2) of the Act (415 ILCS

5/21(d)(2) (2008)) and Section 814.104 of the Board’s landfill rules (35 Ill. Adm. Code

814.104). 04Comp. at 15. Specifically, the complaint alleges that the Pruims failed to cause

CLC to file a request for a significant modification permit in a timely manner.

Count VI

Count VI of the complaint alleges that the Pruims caused or allowed water pollution in

violation of Sections 12(a) and 21(d)(2) of the Act (415 ILCS 5/12(a) and 21(d)(2) (2008)) and

Section 807.313 of the Board’s landfill regulations. 04Comp. at 18. The complaint alleges that

these violations occurred during an inspection at the landfill on May 22, 1995. 04Comp. at 16.

Specifically, the complaint alleges that the Pruims allowed leachate to flow into a ditch on site

which eventually flows into the Illinois River. 04Comp. at 17-18.

Counts VII, VIII, IX and X

Counts VII, VIII, and X of the complaint involve the same facts. Specifically, the

complaint alleges that the Pruims allowed waste to be deposited in Parcel B of the landfill even

after the Pruims reported that Parcel B had no remaining capacity. 04Comp. at 19-20. The

complaint further alleges that the Pruims have allowed Parcel B to be filled to an elevation

exceeding the permitted elevation. 04Comp. at 20. The complaint maintains that these actions

have resulted in violation of Sections 21 (a) (Count IX), 21(o)(9) (Count VII) and 21(d)(1)

(Count VIII and X) of the Act(415 ILCS 5/21(a), 21(o)(9) and (d)(1) (2008)), and standard

condition number 3 of supplemental development permit number 1989-005-SP. 04Comp. at 21,

23, and 27.

Count XII

The complaint alleges that on July 28, 1998, the Pruims violated Section 55(b-1) of the

Act (415 ILCS 5/55(b-1) (2008)). 04Comp. at 33. Specifically, the complaint alleges that the

Pruims allowed the mixing of waste tires with municipal waste.

Count XVII

The complaint alleges that the Pruims violated Section 21(d)(1) of the Act and special

condition number 13 of permit number 1996-240-SP. 04Comp. at 44. Specifically, the

complaint alleges that the Pruims were required to provide financial assurance within 90 days

from October 24, 1996, in the amount of $1,431,360 and to increase the amount to $1,439,720

prior to the operation of the gas extraction system. 04Comp. at 43. The complaint alleges that

the Pruims failed to provide such increased financial insurance until September 1, 1999.

04Comp. at 44.

Count XIX

The complaint alleges that the Pruims violated Section 21(d)(2) of the Act (415 ILCS

5/21(d)(2) (2008)) and Section 807.623(a) of the Board’s landfill regulation (35 Ill. Adm. Code

807.623(a)). 04Comp. at 49. Specifically, the complaint alleges that the Pruims failed to

provide a revised cost estimate. 04Comp. at 48. The complaint alleges that pursuant to a

supplemental permit issued on April 20, 1993, the Pruims were required to provide a revised cost

estimate to the Agency by December 26, 1994.

. The complaint alleges that Pruims did file a

cost estimate on July 26, 1996.

PROCEDURAL BACKGROUND OF CONSOLIDATED CASES

After consolidating the cases and ruling on the motion for summary judgment in PCB 04-

207, the parties proceeded with the case. Three days of hearing were held before Board Hearing

Officer Bradley Halloran on December 2, 3, and 4, 2008

, in Morris, Grundy County. On

December 23, 2008, the People filed an appeal of a ruling by Hearing Office Halloran (Appeal).

On January 12, 2009, respondents filed a response in opposition to the appeal (App.Resp.).

On February 6, 2009, the People filed their opening brief (Br.) and on May 18, 2009 the

reply brief (Reply). On May 4, 2009, respondents filed their brief (Resp.Br.).

The transcripts are not sequentially numbered so they will be cited as “12/2Tr.”, “12/3Tr.”, and

“12/4Tr.”.

APPEAL OF HEARING OFFICER RULING

On December 23, 2008, the People filed a motion asking the Board to overrule a hearing

officer decision (HOMot.). On January 12, 2009, the respondents filed a response in opposition

to the motion (HOResp.). For the reasons articulated below the Board affirms the hearing

officer’s ruling.

Hearing Officer Ruling

On December 2, 2008, the hearing officer granted respondents’ motion in

limine

number

one and excluded an exhibit offered by the People. 12/2Tr. at 4-5. The hearing officer ruled that

the People were attacking the veracity of the Pruims and were offering the exhibit 27 for

impeachment purposes.

. The hearing officer relied on People v. Montgomery, 47 Ill.2d 510

(1971).

Arguments

The People argue that the exhibit 27 is being offered as substantive evidence of the

Pruims personal and direct involvement in violations of CLC. HOMot. at 1. The People argue

that the Montgomery case places a ten year statute of limitation on the use of felony convictions

for impeachment and the case did not establish a ten year rule for use for any other purpose.

HOMot. at 2. The People maintain that exhibit 27 is being offered to substantiate the Pruims

direct involvement and will allow the Board to determine that the Pruims kept the landfill open

after reaching capacity for personal reasons. HOMot. at 2-3.

The People also argue that the evidence is relevant as the unpaid debt is relevant to this

case. HOMot at 3-4.

The respondents urge the Board to affirm the hearing officer’s ruling as the hearing

officer reviewed the motions and responses and ruled at hearing. HOResp. at 2.

Board’s Ruling

The Board affirms the hearing officer ruling that People’s exhibit 27 should be excluded.

The People’s own documents indicate that the exhibit will be used for impeachment of the

Pruims.

See

HOResp. Exh. A. The Board finds nothing in the People’s arguments that

convinces the Board that the hearing officer ruled incorrectly. Therefore, the Board affirms the

hearing officer’s order excluding People’s exhibit 27.

OUTLINE OF OPINION

After the various motions for summary judgment and dismissals, the Board is left with

deciding whether or not CLC is in violation of the Act, Board regulations, and permit conditions

as alleged in seven remaining counts. The Board must also determine whether or not the Pruims

are in violation of the Act, Board regulations, and permit conditions as alleged in thirteen

remaining counts.

Once the Board has determined whether or not violations have occurred, the Board then

must consider what remedy to apply based on any newly found violations and those already

found against CLC.

The Board will begin by summarizing the relevant facts. The Board will then look at the

remaining alleged violations against CLC and those will be discussed in turn. Next the Board

will look at the remaining alleged violations against the Pruims and those too will be discussed in

turn. The Board’s opinion will then address the remedy issue.

LEGAL FRAMEWORK

In an enforcement proceeding before the Board, the burden of proof is by a

preponderance of the evidence. Lefton Iron & Metal Company, Inc. v. City of East St. Louis,

PCB 89-53 at 3, (Apr. 12, 1990); Bachert v. Village of Toledo Illinois,

et al.

, PCB 85-80 at 3,

(Nov. 7, 1985); Industrial Salvage Inc. v. County of Marion, PCB 83-173 at 3-4, (Aug. 2, 1984),

citing

Arrington v. Water E. Heller International Corp., 30 Ill. App. 3d 631, 333 N.E.2d 50,58,

(1st Dist. 1975). A proposition is proved by a preponderance of the evidence when it is more

probably true than not. Industrial Salvage at 4,

citing

Estate of Ragen, 79 Ill. App. 3d 8, 198

N.E.2d 198, 203

(1st Dist. 1979). A complainant in an enforcement proceeding has the burden

of proving violations of the Act by a preponderance of the evidence. Lake County Forest

Preserve District v. Neil Ostro, PCB 92-80, (Mar. 31, 1994). Once the complainant presents

sufficient evidence to make a prima facie case, the burden of going forward shifts to the

respondent to disprove the propositions (Illinois Environmental Protection Agency v. Bliss, PCB

83-17, (Aug. 2, 1984)).

See

Nelson v. Kane County Forest Preserve,

et. al.

, PCB 94-244 (July

18, 1996); People v. Chalmers

, PCB 96-111 (Jan. 6, 2000).

FACTS

The Board will lay out the facts by starting with the facts concerning each of the

inspections at the landfill. The Board will then set forth facts relevant to the alleged violations

arising from circumstances other than the inspections.

Inspections

The Agency conducted several inspections of the landfill operated by respondents.

Inspections took place on August 18, 1993, April 7, 1994, March 22, 1995, May 22, 1995, March

5, 1997, July 28, 1998, November 19, 1998, March 31, 1999, May 11, 1999, and July 20, 1999.

See generally

97Comp. at 4 and 04Comp. at 4-5. Agency employees, Warren Weritz and Tina

Kovasznay, conducted the inspections.

See

12/3Tr. at 58-59 and 12/2Tr. at 19-20. During those

inspections, Mr. Weritz and Ms. Kovasznay recorded several observations that led to the

allegations in the complaint.

See generally

Comp.Exh. 13a, 13b, 13e, 13f, 13i, 13j, 13k, 13l,

13m, and 13n.

August 18, 1993 Inspection

Mr. Weritz inspected the landfill on August 18, 1993 as a result of a complaint

investigation and he inspected only Parcel B. 12/3Tr. at 60-61. Mr. Weritz met with Mr. Jim

Pelnarsh Sr., whom Mr. Wertiz understood to be the operator of the landfill and Mr. Weritz’s

main contact. 12/3Tr. at 61. Mr. Wertiz observed garbage and processed landscape waste being

landfilled together. 12/3Tr. at 62. Mr. Weritz indicated that Mr. Pelnarsh, Sr. indicated that the

landscape waste was being used as a part of the daily cover and Mr. Weritz informed Mr.

Pelnarsh Sr. that landfilling of landscape waste was not allowed. 12/3Tr. at 62-63. Mr. Weritz

included his observations in the narrative of his inspection report. 12/3Tr. at 63.

Mr. Weritz did not return at the end of the operating day, so he did not observe the site

conditions at that time. 12/3Tr. at 85. Mr. Weritz also did not know whether the landscape

waste was present at the end of the day.

. Mr. Weritz had no knowledge as to whether the

officers or shareholders of CLC had personal involvement in the alleged violations observed

during this inspection.

The inspection report indicates that Mr. Pelnarsh Sr. was interviewed and that a violation

of Section 22.22(c) of the Act (415 ILCS 5/22.22(c) (2008)) was observed. Comp.Exh. 13a at 1,

4. In the narrative, the processing of garbage and landscape waste is noted. Comp.Exh. 13a at 5.

The narrative notes that CLC is permitted to compost landscape waste and there was “no clear

reason given” as to why some landscape waste was landfilled and some composted.

April 7, 1994 Inspection

Mr. Weritz testified that the April 7, 1994 inspection was undertaken at the request of the

Agency’s division of legal counsel and the inspection was of Parcel B only. 12/3Tr. at 64. Mr.

Weritz took pictures while inspecting the site, which were included with the inspection report

(Comp.Exh. 13b).

. Mr. Pelnarsh Sr. accompanied Mr. Weritz on the inspection and Mr.

Weritz observed the “continuing practice of landfilling landscape waste.” 12/3Tr. at 65. Mr.

Weritz also observed litter in the perimeter ditch at the southwest portion of the landfill.

. Mr.

Weritz indicated that Mr. Pelnarsh Sr. “admitted” litter was not being collected at the end of the

working day.

. Mr. Weritz also observed leachate seeps along the northwest perimeter that did

not appear to migrate offsite. 12/3Tr. at 66.

Mr. Weritz’s inspection took place from 2:30 to 3:55 p.m. and he did not return at the end

of the day to observe site conditions. 12/3Tr. at 87. Mr. Weritz conceded that the pictures

depicting bags along the perimeter ditch did indicate that someone picked up litter at some point.

see also

Comp.Exh. 13a at Pics. 11 and 12. Mr. Weritz also conceded that he had no

independent evidence that the observed violations were present at the end of the day. 12/3Tr. at

90. Mr. Weritz had no knowledge as to whether the officers or shareholders of CLC had

personal involvement in the alleged violations observed during this inspection. 12/3Tr. at 91.

Mr. Weritz testified that he did not obtain samples of the liquid that he observed both at

the site and migrating off the site. 12/3Tr. at 95-96. Mr. Weritz based his conclusion that the

liquid was leachate on his observations and he did not personally observe the liquid actually

leaving the site. 12/3Tr. at 96-97. Mr. Weritz did not observe naturally occurring runoff at the

site from iron ore deposits and did not know what that type of liquid might look like. 12/3Tr. at

97-98.

The inspection report indicates that Mr. Pelnarsh Sr. met Mr. Weritz and drove around

the active area of the landfill. Comp.Exh. 13b at 5. The inspection report is marked indicating

violations of Section 21(o)(12) of the Act (415 ILCS 5/21(o)(12) (2008)) and Section 807.306

(35 Ill. Adm. Code 807.306) were observed. Comp.Exh. 13b at 2. The inspection report also is

marked indicating violations of Section 22.22(c) of the Act (415 ILCS 5/22.22(c) (2008)) and

Section 807.314(e) (35 Ill. Adm. Code 807.314(e)) were observed. Comp.Exh. 13b at 3, 4. The

narrative indicates that Mr. Pelnarsh Sr. “admitted” that litter was not being collected at the end

of the day. Comp.Exh. 13b at 5.

March 22, 1995 Inspection

Mr. Weritz stated that this investigation was conducted as a result of another complaint

and the inspection was of Parcel B only. 12/3Tr. at 66. The inspection report includes pictures

and the inspection was conducted with Jim Pelnarsh Jr. present. 12/3Tr. at 67. Mr. Weritz

testified that there was no evidence that composted material was being landfilled; however other

problems were occurring at the landfill. 12/3Tr. at 67-68. Mr. Weritz stated that he observed

litter and a leachate seep flowing into the perimeter ditch. 12/3Tr. at 68. Mr. Weritz indicated

that he knew the liquid was leachate based on observing the flow from the sidewall of the landfill

and the liquid had a reddish color and foul odor.

. Mr. Weritz indicated that pictures included

with the inspection report depicted the leachate. 12/3Tr. at 68-69; Comp.Exh. 13e, Pics. 5, and

6. Mr. Weritz stated that based on his experience the reddish liquid was leachate because the

liquid flowed out of the sidewall of the landfill and was discolored and foul smelling. 12/3Tr. at

69.

Mr. Weritz observed litter scattered in and around the perimeter ditch leading to the

retention pond and refuse in standing water in the retention pond. 12/3Tr. at 69. Mr. Weritz

testified that photographs were taken depicting his observation of the litter.

. Comp.Exh. 13e

at Pics. 8, 9, and 10.

Mr. Weritz inspected the site at midday and did not return to the site to observe the

conditions at the end of the day. 12/3Tr. at 91-92. Mr. Weritz testified that he had no

independent evidence that the litter observed remained uncovered at the end of the operating day.

12/3Tr. at 92. Mr. Weritz had no knowledge as to whether the officers or shareholders of CLC

had personal involvement in the alleged violations observed during this inspection.

Mr. Weritz testified that he did not obtain samples of the liquid that he observed both at

the site and migrating off the site. 12/3Tr. at 95-96. Mr. Weritz based his conclusion that the

liquid was leachate on his observations and he did not personally observe the liquid actually

leaving the site. 12/3Tr. at 96-97. Mr. Weritz did not observe naturally occurring runoff at the

site from iron ore deposits and did not know what that type of liquid might look like. 12/3Tr. at

97-98

The inspection report is marked indicating violations of Section 21(o)(12) of the Act (415

ILCS 5/21(o)(12) (2008)) and Section 807.306 (35 Ill. Adm. Code 807.306) were observed.

Comp.Exh. 13e at 2. The inspection report also is marked indicating violations of Section

21(o)(1) of the Act (415 ILCS 5/21(o)(1) (2008)) and Section 807.314(e) (35 Ill. Adm. Code

807.314(e)) were observed. Comp.Exh. 13b at 3. The narrative indicates that a “significant

amount of blown litter” from the prior days’ operations was observed along with leachate seeps

and refuses in the retention pond. Comp.Exh. 13e at 5. Photos were taken of the leachate seeps

and refuse in the retention pond.

May 22, 1995 Inspection

Mr. Weritz testified that the May 22, 1995 inspection was a routine inspection of Parcel

B and pictures were taken. 12/3Tr. at 70-71. Mr. Weritz was accompanied on his inspection by

Mr. Pelnarsh Sr. and Jean Ann Robinson, solid waste coordinator for Grundy County. 12/3Tr. at

71. Mr. Weritz observed leachate seeps that resulted in leachate in the perimeter ditch. 12/3Tr.

at 72. Mr. Weritz stated that the “ditches were running red with a lot of leachate” and the

leachate appeared to be leaving the site.

. Mr. Weritz knew the liquid was leachate because of

the appearance, color, and odor.

. Mr. Weritz pointed to photograph 13, as a good depiction of

what he observed. 12/3Tr. at 73, Comp.Exh. 13f at Pic. 13. Mr. Weritz prepared a site sketch

that depicted the drainage pattern that showed that leachate from parcel B flowing to Parcel A,

and eventually to a pond off site. 12/3Tr. at 73, Comp.Exh. 13f at 7. Mr. Weritz indicated that

after discussing the drainage with Mr. Pelnarsh Sr., the flow from the pond was “probably

flowing into the Illinois and Michigan Canal and or the Illinois River.” 12/3Tr. at 73-74. Mr.

Weritz concluded that the leachate was migrating into the Illinois River. 12/3Tr. at 74.

Mr. Weritz inspected the site midday and did not return to the site to observe the

conditions at the end of the day. 12/3Tr. at 92. Mr. Weritz testified that he had no independent

evidence that the litter observed remained uncovered at the end of the operating day. 12/3Tr. at

92-93. Mr. Weritz had no knowledge as to whether the officers or shareholders of CLC had

personal involvement in the alleged violations observed during this inspection. 12/3Tr. at 93.

Mr. Weritz testified that he did not obtain samples of the liquid that he observed both at

the site and migrating off the site. 12/3Tr. at 95-96. Mr. Weritz based his conclusion that the

liquid was leachate on his observations and he did not personally observe the liquid actually

leaving the site or flow to the Illinois River. 12/3Tr. at 96-97, 99-100. Mr. Weritz concedes that

he did not see the liquid actually enter the waters of the state, but assumed that the liquid would.

12/3Tr. at 100. Mr. Weritz did not observe naturally occurring runoff at the site from iron ore

deposits and did not know what that type of liquid might look like. 12/3Tr. at 97-98

The inspection report is marked indicating violations of Section 12(a), 21(o)(1),21(o)(2),

21(o)(3), 21(o)(5), 21(o)(12) of the Act (415 ILCS 5/12(a), 21(o)(1), 21(o)(2), 21(o)(3), 21(o)(5),

21(o)(12) (2008)) and Section 807.306, 807.313, 807.314(e) (35 Ill. Adm. Code 807.306,

807.313, 807.314(e)) were observed. Comp.Exh. 13f at 1-3. The narrative indicates that “a

significant amount of leachate had seeped into the perimeter ditch” and there were at least three

large eroded areas where leachate seeps had exposed previously covered refuse. Comp.Exh. 13f

at 5. The narrative indicates that Mr. Pelnarsh Sr. “acknowledged the presumption that the

leachate was flowing off-site and into a waterway.”

March 5, 1997 Inspection

Mr. Weritz testified that this was a routine inspection of Parcel B only and pictures were

taken. 12/3Tr. at 75. Mr. Weritz was accompanied on his inspection by Mr. Joe Rogbe an

equipment operator at the site.

. Mr. Weritz observed open dumping of refuse and refuse

being disposed of outside the permitted boundary of the landfill and that the landfill exceeded the

permitted elevations. 12/3Tr. at 76. Mr. Weritz testified that he had been notified by the permit

section of the Agency that landfill had exceeded the permitted elevations prior to the inspection.

. Mr. Weritz stated that Mr. Rogbe informed him that CLC was still accepting waste in Parcel

B. 12/3Tr. at 77.

The inspection report is marked indicating that violations of Sections 21(a), (d)(1), and

21(o)(9) of the Act (415 ILCS 5/21(a), (d)(1), and 21(o)(9) (2008)) were observed. Comp.Exh.

13i at 1-2. In addition the inspection report indicates that there was a failure to obtain a permit

modification from the Agency before increasing the height of the landfill. Comp.Exh. 13i at 7.

July 28, 1998 Inspection

Mr. Weritz’s July 28, 1998 inspection was a routine inspection of both Parcel A and B on

which Mr. Pelnarsh Jr. accompanied him. 12/3Tr. at 77-78. Mr. Weritz observed general refuse

waste, tires, and landscape waste being landfilled. 12/3Tr. at 78. Mr. Weritz also observed

“recontouring” of Parcel A, removing old waste from one area to another.

. Mr. Weritz

indicated that pictures taken and included with the inspection report depicted these observations.

12/3Tr. at 79, Comp.Exh. 13j at Pics. 2,3,4,5, and 6.

As to Parcel B, Mr. Weritz observed that the gas extraction wells “apparently were

recently installed.” 12/3Tr. at 80. Mr. Weritz observed erosion along the landfill as a result of

the installation.

Mr. Weritz inspected the site between 2:35 and 3:40 p.m. and did not return to the site to

observe the conditions at the end of the day. 12/3Tr. at 93. Mr. Weritz testified that he had no

independent evidence that the litter observed remained uncovered at the end of the operating day

or that the landscape waste remained in the operating space. 12/3Tr. at 93-94. Mr. Weritz. also

had no evidence that the tires remained at the end of the day.

. Mr. Weritz had no knowledge

as to whether the officers or shareholders of CLC had personal involvement in the alleged

violations observed during this inspection. 12/3Tr. at 94.

Mr. Weritz testified that he was not aware of an October 1996 permit that allowed for

vertical expansion of Parcel A at the time of the inspections, but was aware of an August 1996

significant modification permit application by CLC. 12/3Tr. at 103. Mr. Weritz was not aware

of the permit status of Parcel A at the time of this inspection 12/3Tr. at 105.

The inspection report is marked indicating that violations of Sections 21(a), 21(d)(1),

21(e), 21(o)(5), 21(o)(7), 21(o)(9), 22.22(c), and 55(b)(1) of the Act (415 ILCS 5/21(a), 21(d)(1),

21(e), 21(o)(5), 21(o)(7), 21(o)(9), 22.22(c), and 55(b)(1) (2008)) were observed. Comp.Exh.

13j at 1-3. The narrative indicates that CLC did not timely file a significant modification permit

and consequently at the time of the inspection was operating without a permit. Comp.Exh. 13j at

November 19, 1998 Inspection

The November 19, 1998 inspection was a routine inspection of both Parcels A and B.

12/3Tr. at 81. Mr. Pelnarsh Jr. accompanied Mr. Weritz on the inspection.

. Mr. Weritz

observed issues with erosion on the side slopes and maintenance needs on the perimeter ditches.

12/3Tr. at 82. Mr. Weritz also noted “numerous” continuing violations as well including

operating without a permit.

. Mr. Weritz observed general construction and demolition debris

being landfilled at the time of the inspection.

The inspection report is marked indicating that violations of Sections 21(a), 21(d)(1),

21(e), 21(o)(7), and 21(o)(9) of the Act (415 ILCS 5/21(a), 21(d)(1), 21(e), 21(o)(7), and

21(o)(9) (2008)) were observed. Comp.Exh. 13k at 1-2. The narrative report indicates that on

Parcel B no landfilling activities were observed but the side slopes needed to be addressed and

the perimeter ditches needed maintenance. Comp.Exh. 13k at 9. Parcel A was being

recontoured and waste had been accepted at the landfill.

March 31, 1999 Inspection

Ms. Kovasznay testified that she first inspected CLC on March 31, 1999, taking over

from Mr. Weritz. 12/2Tr. at 20-21. Ms. Kovasznay performed four inspections before turning

over responsibility for inspections to Mark Retzlaff in 2000.

. On March 31, 1999, in a

routine inspection, Ms. Kovasznay inspected both Parcels A and B, took pictures of the site and

was accompanied by Mr. Pelnarsh Sr. 12/2Tr. at 21-22. On Parcel A, Ms. Kovasznay observed

that CLC was accepting waste and there was blowing litter. 12/2Tr. at 23. In addition Ms.

Kovasznay noted that leachate was being collected and added to the clay liners of the new cells

to increase moisture content.

. Ms. Kovasznay did not specifically observe “anything” but Mr.

Pelnarsh Sr. “told” her this practice was occurring. 12/2Tr. at 26.

Ms. Kovasznay’s recollection is that Parcel A was not permitted to accept waste material

at the time of her inspection. 12/2Tr. at 23. Ms. Kovasznay referred to photos attached to the

inspection report (Comp.Exh. 13l at Pic. 7, 8) which depict the site. 12/2Tr. at 24. Ms.

Kovasznay spoke with Mr. Pelnarsh Sr. about the litter on site and understood that the litter

would not be picked up that day. 12/2Tr. at 25.

Regarding Parcel B, Ms. Kovasznay observed that the gas collection system was

operating and that there was severe erosion on the slopes around the whole perimeter of the

landfill. 12/2Tr. at 26. Ms. Kovasznay also observed ponding water on top of the landfill and

uncovered refuse. 12/2Tr. at 27. Ms. Kovasznay stated that the landfill was not permitted to run

the gas collection system at the time of her inspection.

. Ms. Kovasznay asked Mr. Pelnarsh

Sr. if the system was running and “he stated that it had been operating for the last month.”

Ms. Kovasznay did not believe that the system could have been running on the day of inspection

as a test.

Ms. Kovasznay performed her inspection from 9:30 to 10:40 a.m. and did not return to

the site at the end of the day. 12/2Tr. at 44. Ms. Kovasznay conceded that the conditions were

windy at the time of the inspection. 12/2Tr. at 46. Ms. Kovasznay did not observe the site

conditions at the end of the day and has only Mr. Pelnarsh Sr.’s statements that the litter was not

covered at the end of the day. 12/2Tr. at 44. Ms. Kovasznay has no evidence that shareholders

or officers of CLC know anything about the alleged violations.

As to the running of the gas collection system, Ms. Kovasznay heard the engine and

relied on Mr. Pelnarsh Sr.’s statements regarding the gas collection system. 12/2Tr. at 47-48.

Ms. Kovasznay could not tell by observing the wells, if the system was running and Ms.

Kovasznay has no evidence of involvement of shareholders or officers of CLC. 12/2Tr. at 48.

Ms. Kovasznay did not see liquid being placed in lined areas of the landfill and she did

not ask Mr. Pelnarsh Sr. where the liquid was coming from. 12/2Tr. at 49. Ms. Kovasznay, nor

anyone else, performed tests on the liquid and Ms. Kovasznay has only Mr. Pelnarsh Sr.’s

statements as evidence. 12/2Tr. at 49-50.

The inspection report is marked indicating that violations of Sections 21(a), 21(d)(1),

21(d)(2), 21(e), 21(o)(7), and 21(o)(9) of the Act (415 ILCS 5/21(a), 21(d)(1), 21(d)(2), 21(e).

21(o)(7), and 21(o)(9) (2008)) were observed. Comp.Exh.13l at 1-2. In addition the inspection

report indicates violations of the Board’s landfill rules at Sections 814.101(b)(3) and 814.105 (35

Ill. Adm. Code 814.101(b)(3) and 814.105) and of permit conditions were observed.

Comp.Exh.13l at 5-6. The narrative report notes the operation of the gas management system

and the erosion of the slopes on Parcel B. Comp.Exh.13l at 7. The narrative report notes that

waste was being accepted and that blowing litter was observed.

. The narrative report

indicates that Mr. Pelnarsh Sr. stated his helper was out of the country and that the leachate was

being collected and used on the clay liners of new cells.

May 11, 1999 Inspection

Ms. Kovasznay inspected the landfill on May 11, 1999 with Fred Lebensorger to

determine if CLC was in compliance with regulations regarding the handling of asbestos.

12/2Tr. at 29. Ms. Kovasznay did not fill out an inspection report but instead compiled a

memorandum (Comp.Exh. 13m). 12/2Tr. at 30. Ms. Kovasznay observed that CLC was

accepting waste and that there were severe erosion gullies. 12/2Tr. at 30-31.

July 20, 1999 Inspection

This inspection was a routine inspection of both Parcels A and B and Ms. Kovasznay

took pictures that depict the site. 12/2Tr. at 31, Comp.Exh. 13n. Mr. Pelnarsh Sr. accompanied

Ms. Kovasznay on the July 29, 1999 inspection.

. Ms. Kovasznay observed uncovered refuse

on Parcel A and stated that Mr. Pelnarsh Sr. told her Parcel A was “over high” and still accepting

waste. 12/2Tr. at 32, 36. Ms. Kovasznay took pictures two and three of Parcel A including

uncovered refuse that “according to Mr. Pelnarsh Sr.’s statements, the waste had been uncovered

for at least five days.” 12/2Tr. at 37, Comp.Exh. 13n. Ms. Kovasznay stated that Mr. Pelnarsh

Sr. told her that “they were still disposing of the leachate into the clay of the cell to reduce the

moisture content.”

. Ms. Kovasznay did observe erosion gullies on Parcel A and photo five

depicts those observations.

During the inspection of Parcel B, Ms. Kovasznay noted that the gas management system

was still operating and there was uncovered refuse on the top of the landfill. 12/2Tr. at 38. Ms.

Kovasznay stated that there was no cover on the majority of the landfill.

. Ms. Kovasznay

took photos six and seven which depict the refuse and lack of cover. 12/2Tr. at 39, Comp.Exh.

13n.

The inspection report is marked indicating that violations of Sections 21(a), 21(d)(1),

21(d)(2), 21(e), 21(o)(5), 21(o)(6), 21(o)(7), and 21(o)(9) of the Act (415 ILCS 5/21(a), 21(d)(1),

21(d)(2), 21(e). 21(o)(7), and 21(o)(9) (2008)) were observed. Comp.Exh. 13n at 1-2. In

addition the inspection report indicates violations of the Board’s landfill rules at Sections

807.302, 807.305(a-c), 807.310(b), 807.623, 814.101(b)(3) and 814.105 (35 Ill. Adm. Code

807.302, 807.305(a-c), 807.310(b), 807.623, 814.101(b)(3) and 814.105) and of permit

conditions were observed. Comp.Exh. 13n at 4-6. The narrative report notes the operation of the

gas management system. Comp.Exh. 13n at 7. The narrative report notes that CLC chose to fill

overheight and daily cover has not been placed on the landfill.

Ms. Kovasznay did not see liquid being placed in lined areas of the landfill and she did

not ask Mr. Pelnarsh Sr. where the liquid was coming from. 12/2Tr. at 49. Ms. Kovasznay, nor

anyone else, performed tests on the liquid and Ms. Kovasznay has only Mr. Pelnarsh Sr.’s

statements as evidence. 12/2Tr. at 49-50. Ms. Kovasznay also had only Mr. Pelnarsh Sr.’s

statements regarding the overheight issue as evidence. 12/2Tr. at 52.

September 7, 1999 Inspection

Ms. Kovasznay indicated that the September 7, 1999 inspection was not a routine

inspection and the inspection was conducted at the request of the Agency’s Bureau of Land.

12/2Tr. at 39. Ms. Kovasznay was asked to ascertain if CLC was accepting waste and if so from

what generators.

. Ms. Kovasznay prepared a memorandum of her observations from that day.

12/2Tr. at 40, Comp.Exh. 13o. Ms. Kovasznay testified that she observed that CLC was “still

operating and still accepting waste” 12/2Tr. at 40. Ms. Kovasznay stated that the Agency’s

opinion was that CLC could not accept waste as of the date of the inspection.

Forms Filed by CLC

Capacity Certification Forms

Ellen Robinson with the Agency testified concerning the annual capacity certification

forms filed by CLC. 12/3Tr. at 4-5. The landfill capacity forms are submitted by landfill

operators and the forms provide the Agency with an idea of how much capacity remains each

year as well as how many cubic yards were accepted at a landfill in a given year. 12/3Tr. at 6.

The April 19, 1993 landfill capacity certification form for the site was submitted by Andrews

Environmental Engineering (Andrews). 12/3Tr. at 9-10, Comp.Exh. 14c. The remaining

capacity, based on the form as of April 19, 1993, was 279,940 cubic yards. 12/3Tr. at 13-14,

Comp.Exh. 14c at 2. The remaining life expectancy of the landfill was 1.35 years. 12/3Tr. at 15,

Comp.Exh. 14c at 3. The signatures on the report are mayor for the City of Morris, Edward

Pruim as secretary/treasurer for CLC and R. Michael McDermont the engineer. 12/3Tr. at 16-17,

Comp.Exh. 14c at 4.

Ms. Robinson explained on cross-examination that 279,940 cubic yards is the remaining

airspace capacity which is multiplied by the compaction rate to reach the gate yards capacity

which would be 464,700 cubic yards. 12/3Tr. at 33.

Ms. Robinson next testified concerning the January 1, 1995 capacity certification form

filed by CLC. 12/3Tr. at 17, Comp.Exh. 14d. The form covers a period from April 1, 1994, to

December 31, 1994. 12/3Tr. at 18. The amount of capacity remaining on April 1, 1994, was

264,290 cubic yards and the amount of waste received by December 31, 1994, was 457,000

cubic yards.

., Comp.Exh. 14d at 3. Ms. Robinson opined that the landfill should be closed

and noted that the form indicated zero years were remaining.

. The form was signed by the

mayor of Morris, Edward Pruim signed as secretary and James Andrews signed as engineer.

12/3Tr. at 19, Comp.Exh. 14d at 4.

On cross-examination, Ms. Robinson was not sure if the 264,290 cubic yards listed on the

form were gate yards or airspace. 12/3Tr. at 34-37. This number was provided by the Agency,

but Ms. Robinson does not know by whom or how the number was calculated. 12/3Tr. at 37-38.

The January 1, 1996 capacity certification form provided by CLC covered the time period

from January 1, 1995, to December 31, 1995. 12/3Tr. at 20, Comp.Exh. 14e. Ms. Robinson

testified that the remaining volume available for waste disposal as of January 1, 1995, was zero

and that 540,135 cubic yards of waste was received by CLC.

. Ms. Robinson stated that “there

were zero years remaining, zero capacity, yet they took in waste.” 12/3Tr. at 20. This form was

signed by the mayor of Morris, Robert Pruim signed as president, and J. Douglas Andrews.

12/3Tr. at 21, Comp.Exh. 14e.

Ms. Robinson conceded that the capacity certification forms have no information on the

height of the landfill and based on the forms, Ms. Robinson cannot determine if waste was

placed at an elevation over the permitted capacity. 12/3Tr. at 30.

The January 1, 1997 landfill capacity certification form covered the period from January

1, 1996, until December 31, 1996, and covered both Parcels A and B. 12/3Tr. at 40-41,

Comp.Exh. 14f at 3. The remaining capacity is listed as 1,774,789 cubic yards and CLC

received 297,988 cubic yards during the prior twelve months. 12/3Tr. at 40-41, Comp.Exh. 14f

at 2-3.

Loads Delivered to Site in 1994

Mr. John Enger, who is the city clerk for Morris, testified concerning the records kept for

dumping at the site. 12/2Tr. at 119-20, Comp.Exh. 26. The information for each month is

compiled from daily tickets delivered to Chamlin & Associates. 12/2Tr. at 120. Chamlin &

Associates compile reports and then send a bill to CLC.

. Morris also keeps the reports

compiled by Chamlin & Associates. 12/2Tr. at 121. The reports were admitted into the record.

., Comp. Exh. 26.

Permit Applications

Christina Roque reviews permit applications for the Agency and has been doing so since

1992. 12/2Tr. at 62. Ms. Roque is the permit engineer assigned to work with the site. 12/2Tr. at

62-63. Ms. Roque testified concerning the January 5, 1989 permit application filed for the site.

. The operator is listed as CLC and the application was signed by the mayor of Morris as

owner, and Edward Pruim, secretary/treasurer for CLC. 12/2Tr. at 63, Comp.Exh. 1a at 8-9

On a site sketch the final elevation is specified as 580 feet above sea level. 12/2Tr. at 67,

Comp.Exh. 1a at 21.

On June 5, 1989, the Agency issued the permit in response to the January 5, 1989

application. 12/2Tr. at 67, Comp.Exh. 2a. The permit was sent to Morris and CLC, whose

address was in Crestwood.

. Ms. Roque testified that the permit incorporated the 580 foot

height limit. 12/2Tr. at 68, Comp.Exh. 2a at 1.

Ms. Roque noted that a 1993 biennial review of the closure plan was filed by CLC and

signed by Edward Pruim as secretary/treasurer. 12/2Tr. at 68, Comp.Exh. 1c. The biennial

review was also signed by the mayor of Morris. Comp.Exh. 1c at 2. A permit was issued on

April 20, 1993, in response to the biennial review. 12/2Tr. at 68, Comp.Exh. 2b. The April 20,

1993 permit requires financial assurance in the amount of $1,342,500 to be posted within 90-

days of the date of the permit. 12/2Tr. at 69, Comp.Exh. 2b at 2. This permit was also mailed to

CLC at the Crestwood address.

On August 5, 1996, an application for significant modification permit for Parcel B was

filed. 12/2Tr. at 69, Comp.Exh. 1e. The application was signed by the mayor of Morris, Robert

Pruim, president and R. Michael McDermont of Andrews. 12/2Tr. at 70, Comp.Exh. 1e at 2.

The August 5, 1996 application includes a diagram of the landfill that includes a height of 580

feet.

On April 30, 1997, CLC filed an addendum to the August 5, 1996 application. 12/2Tr. at

70, Comp.Exh. 1f. The addendum includes information that the landfill is overheight by a total

of 475,00 cubic yards. 12/2Tr. at 71, Comp.Exh. 1f at 17. The cost estimate for removal of the

overheight is $950,000.

. Ms. Roque testified that CLC was to file an application to modify

As the pages are not numbered sequentially in exhibits 1a, 1c, 1e, and 1f, all page numbers

were derived by counting the pages starting with the first as number one.

the final grade of Parcel B, after the waste was relocated. 12/2Tr. at 71. Ms. Roque stated that

the Agency has not received such an application and that Agency has no indication that the waste

was relocated.

On October 24, 1996, the Agency granted a supplemental permit to CLC which included

requirements for financial assurance. 12/2Tr. at 72, Comp.Exh. 2c. The cost estimate for

closure and post-closure care was $1,431,360 and the operator was required to provide financial

assurance within 90 days of the permit issuance. 12/2Tr. at 72, Comp.Exh. 2c at 3. In addition,

the permit required financial assurance in the amount of $1,439,720 be posted prior to operation

of the gas extraction system.

Ms. Roque testified that she had never seen a document signed by Robert or Edward

Pruim as individuals, but only as representatives of the corporation. 12/2Tr. at 78-79. Ms.

Roque has no knowledge as to whether officers or shareholders of CLC had any personal

knowledge or involvement in the alleged violations. 12/2Tr. at 79-80.

Ms. Roque testified that a surveyor was hired by the Agency to determine the overheight,

probably after 2000. 12/2Tr. at 81-82. The survey indicates that the volume above the elevation

of 580 feet is 287,321 cubic yard, but Ms. Roque in her testimony continued to use the 475,000

cubic yard figure, because that was the number provided in the application. 12/2Tr. at 83,

Resp.Exh. 11.

Calculation of Economic Benefit

Ms. Roque prepared a document that represents the Agency’s estimate of cost savings

from a delayed application for a significant modification permit. 12/2Tr. at 73-74, Comp.Exh. 8.

Ms. Roque used the cost estimates from a permit application filed in 2000, and calculated a cost

of delayed application, considering the variance received by CLC for the significant modification

permit, to be $44,526. 12/2Tr. at 74-75, Comp.Exh. 18 at 2. Ms. Roque calculated the cost

without considering the variance at $80,704.

. Ms. Roque calculated the cost based on the

more stringent new regulations that a facility must follow after the issuance of a significant

modification permit. 12/2Tr. at 75. Specifically, Ms. Roque looked at the monitoring

requirements and the frequency of monitoring not required under the old rules and calculated the

costs. 12/2Tr. at 75-76.

Blake Harris has been with the Agency since 1993 and is familiar with the site, having

testified in prior cases related to the site. 12/2Tr. at 92-94. Mr. Harris testified that the Agency’s

opinion of the cost savings for failure to provide financial assurance from 1993 to 1996 is

$47,871.33. 12/2Tr. at 95, 100-01, Comp.Exh. 19. Mr. Harris verified the information used to

calculate the cost savings.

. Mr. Harris stated that the savings were calculated by taking the

amount of financial assurance required in the permit minus the financial assurance that was in

place and multiplied by a rate of two percent per annum for each day that there was an

inadequate amount of financial assurance. 12/2Tr. at 96. Mr. Harris arrived at the two percent

per annum figure because a bond furnished by CLC was at two percent per annum; however,

based on his experience two percent per annum was low. 12/2Tr. at 99-100, Comp.Exh. 9.

Gary Styzens is an internal auditor for the State and has been doing this work for about

25 years. 12/2Tr. at 125. He began with the Agency in 1990 and held positions as an internal

audit supervisor and chief internal auditor. 12/2Tr. at 131, 134. Mr. Styzens stated that in his

opinion “economic benefit” is a type of financial analysis designated by the United States

Environmental Protection Agency (USEPA). 12/2Tr. at 133. An economic benefit is where you

attempt to identify the financial advantage an organization accrued by either delaying or

avoiding expenditures necessary for environmental compliance.

. Mr. Styzens stated that by

avoiding or delaying expenditures an organization receives an unfair advantage over competitors

who did make the necessary expenditures for compliance.

. Mr. Styzens indicated that the

analysis is attempting to identify the financial advantage in order to level the financial playing

field.

Mr. Styzens begins his analysis by gathering information “geared toward identifying

delayed or avoided expenditures relating” to the noncompliance. 12/2Tr. at 139. Mr. Styzens is

given parameters or assumptions to work from and the information can come from the

corporations being examined while others may come from the attorneys at the Agency.

. Mr.

Styzens reviews the documents and makes some assumptions as to whether the estimates are

accurate for the delayed or avoided expenditures.

. Mr. Styzens has reviewed a number of

documents related to economic benefit including the USEPA’s BEN (an acronym for economic

benefit) Manual. 12/2Tr. at 140-41. Mr. Styzens’ objective in performing these tasks is to

develop an objective, reasonable estimate of the financial advantage a corporation has accrued by

delayed or avoided compliance. 12/2Tr. at 141-42.

Mr. Styzens performed an economic benefit analysis for this case at the request of the

Agency’s chief legal counsel and the Office of the Illinois Attorney General. 12/2Tr. at 143.

Mr. Styzens provided a written report which was admitted as an exhibit (Comp.Exh. 17).

Mr. Styzens detailed three types of avoided costs, “Avoidance in Removal of Excess/Overheight

Waste,” “Avoidance of Post-Closure Costs – Significant Mod Application,” and “Avoidance of

Financial Assurance Upgrade Costs.” 12/2Tr. at 146, Comp.Exh. 17 at 1. The avoided costs

information was provided by the Attorney General’s Office and these figures were the starting

point for estimating the economic benefit. 12/2Tr. at 146.

On the issue of overheight, Mr. Styzens used information from Andrews in 1997 that

indicated the cost of removal of some of the overheight waste would be $950,000. 12/2Tr. at

147. Mr. Styzens used that figure to analyze the financial impact of avoiding that cost.

Comp.Exh. 17 at excel spread sheet 1. Mr. Styzens examined the non-compliance period.

Mr. Styzens then took the sum and applied a potential tax break and arrived at an “after-tax

avoided expenditure” and applied a time value interest rate. 12/2Tr. at 149-50, Comp.Exh. 17 at

excel spread sheet 1. The interest rate used was the bank prime loan rate.

. Mr. Styzens

estimated the economic benefit for not removing the overheight to be $1,339,793. 12/2Tr. at

152, Comp.Exh. 17 at excel spread sheet 1.

Mr. Styzens received the information on post-closure costs – significant mod application

for the Attorney General’s Office based on the change in regulations in 1992. 12/2Tr. at 154,

Comp.Exh. 17 at excel spread sheet 2. The cost of the additional monitoring was determined to

be $44,526.

. Mr. Styzens performed the same analysis as with the overheight issue and found

an economic benefit of $73,950. 12/2Tr. at 156, Comp.Exh. 17 at excel spread sheet 2.

On financial assurance, the figures were again provided to Mr. Styzens by the Attorney

General’s Office. 12/2Tr. at 157. The avoided costs were established as $32,074.

Comp.Exh. 17 at excel spread sheet 3. Mr. Styzens performed the same analysis, and found an

economic benefit of $72,336.

. The resulting total economic benefit calculated by Mr. Styzens

is $1,486,079. 12/2Tr. at 158.

Testimony of James Pelnarsh Sr.

Mr. Pelnarsh is the site operator for the site and has been with CLC since 1983. 12/4Tr.

at 9-10. Mr. Pelnarsh reports to either Edward or Robert Pruim who are the only officers and

shareholders in CLC. 12/4Tr. at 10-11. Mr. Pelnarsh did not negotiate the agreement to operate

the site, that was done by the Pruims. 12/4Tr. at 11. The main office of CLC has never been at

the site. 12/4Tr. at 13. Mr. Pelnarsh does not set the dump fees or choose the customers and the

business is done primarily by credit. 12/4Tr. at 13-14. Mr. Pelnarsh maintains a daily log of

dumping volumes but a monthly log was the responsibility of the main office.

Mr. Pelnarsh indicated that Andrews was the engineering firm through the 1990s for

CLC, but Mr. Pelnarsh did not hire Andrews and does not know who did. 12/4Tr. at 15. Mr.

Pelnarsh is not familiar with the permits for the landfill and copies of the permits were not kept

at the site. 12/4Tr. at 16. Mr. Pelnarsh has no responsibility for permitting.

Mr. Pelnarsh was also not involved in negotiations for the installation of a gas energy

system at the landfill. 12/4Tr. at 16. Mr. Pelnarsh could not recall who told him that the system

would be installed. 12/4Tr. at 17.

Mr. Pelnarsh generally accompanied Agency inspectors on their inspections and believed

that the relationship was a good one. 12/4Tr. at 18-19. Mr. Pelnarsh did not prepare a report

after the inspections. 12/4Tr. at 19. Mr. Pelnarsh reiterated the statements from his affidavit

(Resp.Exh. 9) that he did not tell Mr. Weritz that litter was not being picked up at the end of the

day.

Mr. Pelnarsh discussed excavations in the area around Morris and stated that brownish

water and water with an odor of rotten eggs can be found. 12/4Tr. at 20-21, Resp.Exh. 9 at 2.

Mr. Pelnarsh asserts that leachate is black and he did not agree with Mr. Weritz’s

characterization of the liquid as leachate.

. Mr. Pelnarsh stated that a strip mine across the

street also had brown water and even a half mile away you can run into brown water.

. Mr.

Pelnarsh did not take samples of the water and has not tested the iron content. 12/4Tr. at 21-22.

Mr. Pelnarsh’s affidavit was based on his recollections at the time the affidavit was

signed, including his descriptions of conversations with Ms. Kovasznay. 12/4Tr. at 22,

Resp.Exh. 9 at 2-3. Mr. Pelnarsh stated in his deposition that he believed that engine was being

James Pelnarsh Sr. is referred to as both Mr. Pelnarsh Sr and Mr. Pelnarsh.

tested on the gas system when Ms. Kovasznay was present, but Mr. Pelnarsh conceded that the

operators of the gas system did not report to him. 12/4Tr. at 23, Resp.Exh.9 at 3.

Mr. Pelnarsh did not have the authority to cease operations at the site. 12/4Tr. at 24-25.

Mr. Pelnarsh did not submit landfill capacity certification forms to the Agency and the

overheight was not his responsibility.

. Mr. Pelnarsh does believe that there is available

capacity in Parcel B, and believed that space was available when waste stopped being accepted

in Parcel B. 12/4Tr. at 26. Mr. Pelnarsh does not recall ever being directed by the Pruims to

place waste in Parcel B above the permitted height.

In 1994, 1995, and 1996, Mr. Pelnarsh decided where to place waste in Parcel B and he

did not discuss that decision with the Pruims. 12/4Tr. at 27. Mr. Pelnarsh has been deciding

where to place the waste at the site since the time he started working at the site, without any

input from the Pruims.

. Mr. Pelnarsh is the operator and he has made the decisions on the

day-to-day operations of the landfill. 12/4Tr. at 28. Mr. Pelnarsh had on occasion made a

decision to close the landfill.

When Mr. Pelnarsh found out that Parcel B was allegedly overheight, Mr. Pelnarsh was

not placing waste in Parcel B. 12/4Tr. at 29-30. Mr. Pelnarsh has never personally verified that

Parcel B was overheight or filled beyond the capacity. 12/4Tr. at 30. Mr. Pelnarsh believes that

there is still capacity in Parcel B and there is no waste in that area today. 12/4Tr. at 31. Mr.

Pelnarsh indicated that dirt was being moved from Parcel B to Parcel A for daily cover for over

two years and estimates that over 100,000 yards of dirt was moved.

Testimony of Robert Pruim

Robert Pruim is president and one of two owners of CLC. 12/4Tr. at 35. CLC was

formed to operate Morris CLC and the offices were located in Riverdale and Crestwood. 12/4Tr.

at 37. Robert Pruim has been involved in various businesses that were engaged in waste hauling,

disposal and transportation. 12/4Tr. at 36-37. After 1985, the Pruims managed CLC except that

they did not “have anything to do with the site operations.” 12/4Tr. at 39.

The Pruims personally guaranteed royalties to Morris in the CLC lease agreements and

between 1990 and 2000 personally guaranteed bank loans and surety bonds on behalf of CLC.

12/4Tr. at 41. Tipping fees were based on other landfills in the area and with input from Mr.

Pelnarsh, tipping fees were set at the site. 12/4Tr. at 41-42. The credit applications were

approved at the Crestwood office and the Pruims hired Andrews. 12/4Tr. at 43-44.

Robert Pruim and Edward Pruim signed documents as owners and officers of CLC,

including landfill capacity certifications. 12/4 at 45-47, Comp.Exh. 14d and 14e. Robert Pruim

believes that Parcel B has available space and there is nothing in the landfill capacity

certification forms signed by Robert Pruim which indicates the elevation.

. Robert Pruim

believes that the space where the garage office is located is permitted space and he did not

understand that the forms he signed indicated there was not space available. 12/4Tr. at 48.

Robert Pruim disputed the information with the engineer and believes the issue was corrected on

the form filed in 1997. 12/4Tr. at 49-50, Comp.Exh. 14f.

CLC did not put in the gas collection system and did not get royalties on the system.

12/4Tr. at 50-51. Robert Pruim understood that the operator of the system, who also had hired

Andrews, would prepare all permitting documents. 12/4Tr. at 51. Any work done by Andrews

on the gas collection system was done on behalf of the gas collection system operator and not

CLC. 12/4Tr. at 51-52. Robert Pruim understood that the operator would pay for the increased

financial assurance. 12/4Tr. at 52.

Testimony of Edward Pruim

Edward Pruim is the secretary/treasurer and one of two shareholders in CLC. 12/4Tr. at

70-71. Edward Pruim personally guaranteed royalties to Morris between 1990 and 2000 and

personally guaranteed bank loans and surety bonds on behalf of CLC. 12/4Tr. at 72. Also

during that time period the Pruims were the only persons authorized to sign checks on behalf of

CLC. 12/4Tr. at 73. Edward Pruim conceded that only the Pruims could have increased

financial assurance on behalf of CLC. 12/4Tr. at 73-74.

Edward Pruim and Robert Pruim signed documents as owners and officers of CLC,

including landfill capacity certification forms. 12/4Tr. at 74, Comp.Exh. 14d and 14e. Edward

Pruim concedes that the landfill capacity certification form states that there is no remaining

disposal capacity.

. Edward Pruim stated that there is financial assurance in the form of

bonds, but there is no additional financial assurance. 12/4Tr. at 75-76.

Edward Purim also believes there is still capacity in Parcel B as the original permitted

footprint included areas where there are buildings located. 12/4Tr. at 78-79. Edward Pruim

believes there is enough remaining capacity in Parcel B to accommodate any waste overheight.

12/4Tr. at 80. Edward Pruim was aware of the dirt moved from Parcel B to Parcel A, and he

believes that was done to address the overheight. 12/4Tr. at 81.

Edward Pruim indicated that there was always some financial assurance and CLC worked

on increasing the financial assurance “on a constant basis” after being notified that the financial

assurance needed to be increased. 12/4Tr. at 84-85.

CLC did not have rights to parcel A in 1993 and they approached Morris to get control

over Parcel A. 12/4Tr. at 86-87. On November 14, 1994, a lease agreement became effective.

12/4Tr. at 88, Resp. Exh. 51. At that time, CLC prepared to file an application for a significant

modification permit and Edward Pruim as an officer was involved in the application. 12/4Tr. at

86, 88. CLC sought a variance to be allowed to file the application, which the court ultimately

allowed. 12/4Tr. at 88-89.

CLC ALLEGED VIOLATIONS

The Board will now summarize the arguments and issues on each of the counts that have

not been adjudicated in PCB 97-193. The Board will arrange the counts based on the allegations

and facts relating to the counts, thus the counts are not discussed chronologically.

Count I, II, and VI (Daily Management of the Site)

Counts I, II and VI, along with previously adjudicated violations of Counts III and XIII,

all involve the daily operations of the landfill including the management of refuse and litter at the

site and leachate.

See

97Comp. at 6, 8, 10, 18, 38. These alleged violations are related to landfill

maintenance, supervision, and daily operation. The Board will summarize the arguments by both

parties on each count and then make the Board’s finding for each count.

Count I (Manage Refuse and Litter)

In Count I, the complaint alleges violations of Sections 21(d)(2), 21(o)(1), (5) and (12) of

the Act (415 ILCS 5/21(d)(2), 21(o)(1), (5) and (12) (2008)) and 35 Ill. Adm. Code 807.306.

97Comp. at 4.

People’s Arguments.

The People argue that these violations occurred during inspections

made by the Agency between 1994 and 1999. Br. at 32. Specifically, the People point to

testimony of Mr. Weritz and inspection reports that include observations by Mr. Weritz of litter

present in the water in the perimeter ditches and uncovered waste from the previous operating

day.

. The People also point to Ms. Kovasznay’s testimony and inspection reports which

indicate observations of blowing litter and statements made by Mr. Pelnarsh. Br. at 33.

The People take issue with Mr. Pelnarsh’s testimony and deposition statement that he did

not tell Mr. Weritz that the litter was not collected each day. Br. at 33. The People point out that

Mr. Pelnarsh’s testimony is based on his recollections and he did not prepare reports of the

inspections.

. The People argue that Mr. Weritz’s testimony supported by the inspection

report should be “considered far more credible” than the recollections of Mr. Pelnarsh about a

conversation eight years prior.

The People argue that the Board should find for the People as the record establishes that

refuse was present in standing or flowing water in violation of Section 21(o)(1) of the Act (415

ILCS 5/21(o)(1) (2008)). Br. at 33-34. Further, the People argue that the record supports a

finding that refuse from a previous operating day remained uncovered in violation of Section

21(o)(5) of the Act (415 ILCS 5/21(o)(5) (2008)) and Section 807.306 of the Board’s rules (35

Ill. Adm. Code 807.306). Br. at 34. Finally, the People maintain that by violating Section

807.306, a violation of Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) has been

established.

Respondents’ Arguments.

Respondents assert that the People have failed to prove that

refuse and litter were inadequately managed. Resp.Br. at 24. The respondents claim that the

inspectors did not return at the end of the day or observe conditions at the end of the day.

Resp.Br. at 25. Further, respondents claim that pictures taken during inspections show attempts

to control litter.

. Finally, respondents argue that the inspectors had no independent evidence

that the uncovered refuse was from the prior operating day.

In contrast, respondents assert that Mr. Pelnarsh testified that he did not tell Mr. Weritz

that litter was left at the end of the day and that the practice was to pick up litter at the end of the

day. Resp.Br. at 26. Respondents argue that Mr. Pelnarsh testified that there were employees

whose job was to pick up litter.

. The respondents opine that the State has failed to establish

that CLC failed to adequately manage litter and refuse.

Board Finding.

The Board must determine based on a preponderance of the evidence

whether or not the violations occurred. Here, respondents emphasize that the inspectors did not

return at the end of the day and the Board is cognizant that Section 21(o)(5) and (12) of the Act

(415 ILCS 5/21(o)(5) and (12) (2008)) require compliance at the end of the operating day.

However, the Board has reviewed all the evidence in the record including the inspection reports.

Although the images in many of the photographs are not clear due to reproduction issues, the

narrative descriptions are clear. Mr. Pelnarsh on at least one occasion admitted that the litter was

not being picked up.

See

Comp.Exh. 13b. The Board is persuaded that the inspectors observed

uncovered refuse from the previous operating day (Comp.Exh. 13j at pic 7), as well as litter and

refuse in standing water.

The Board notes that at hearing Mr. Pelnarsh denied having told Mr. Weritz that litter

was not being collected and some evidence in the record indicates an attempt is being made to

control litter. However, the Board finds that the contemporaneous inspection narratives along

with the inspectors’ recall are more persuasive than Mr. Pelnarsh’s memory. Furthermore,

achieving compliance with the Act and Board regulations on some occasions does not negate

facts here which demonstrate that during some inspections litter and refuse were not properly

managed. The Board finds that CLC violated Sections 21(d)(2), 21(o)(1), (5) and (12) of the Act

(415 ILCS 5/21(d)(2), 21(o)(1), (5) and (12) (2008)) and 35 Ill. Adm. Code 807.306.

Count II (Leachate Flow)

Count II of the complaint alleges that CLC caused or allowed violations of Sections

21(d)(2) and 21(o)(2) and (3) of the Act (415 ILCS 5/21(d)(2) and 21(o)(2) and (3) (2008)) and

35 Ill. Adm. Code 807.314(e) of the Board regulations, by allowing leachate to exit the landfill

boundaries and enter waters of the State. 97Comp. at 8.

People’s Arguments.

The People argue that Mr. Weritz’s inspections in 1994 and 1995

support a finding of violation as alleged in Count II of the complaint. Br. at 34. The People note

that Mr. Weritz observed leachate seeps that were flowing to the perimeter ditches. Br. at 34-35.

The People argue that Mr. Weritz identified the liquid as leachate based on the color and odor of

the liquid. Br. at 35. The People claim that the presence of the liquid in the perimeter ditches

and the retention pond are persuasive evidence that the respondents failed to stop leachate from

flowing out of the sides of the landfill.

. The People assert that the respondents “make much

of the fact that no samples” of the leachate were taken; however, the respondents do not propose

what test should be performed.

. The People note that respondents assert that the red color is

due to iron deposits, but no evidence was presented to support this claim.

The People argue that the leachate entered surface waters in the perimeter ditches and

retention pond. Br. at 35-36. The People maintain that causing or allowing leachate to enter the

perimeter ditches and retention pond is a violation of Section 21(o)(2) of the Act (415 ILCS

5/21(o)(2) (2008) and Section 807.314(e) of the Board’s rules (35 Ill. Adm. Code 807.314(e)). .

Finally, the People maintain that by violating Section 807.314(e), a violation of Section 21(d)(2)

of the Act (415 ILCS 5/21(d)(2) (2008)) has been established.

Respondents’ Arguments.

The respondents assert that the evidence presented by the

People is insufficient to prove violations against CLC. Resp.Br. at 26. Respondents note that

Mr. Weritz had no independent evidence that the seeps he saw remained at the end of the day

and seeps he had noted during prior inspections were fixed.

. Mr. Weritz never sampled the

liquid and he never actually saw the liquid leave the site. Resp.Br. at 27. Conversely, the

respondents note that Mr. Pelnarsh disagrees that the liquid was leachate because the color of the

liquid was not black and Mr. Pelnarsh testified that the liquid having the same appearance and

odor was found in the area. Resp.Br. at 27.

The respondents opine that the People have failed to establish that CLC should be found

to have violated Sections 21(d)(2) and 21(o)(2) of the Act (415 ILCS 5/21(d)(2) and 21(o)(2)

(2008) and Section 807.314(e) of the Board’s rules (35 Ill. Adm. Code 807.314(e)). The

respondents argue that the People have not proven that the liquid is leachate or that the liquid

was a nuisance. Resp.Br. at 28. Therefore the People argue that the Board should find for CLC.

Board’s Finding.

First, the Board must decide if the record establishes that the liquid

observed by the Agency inspectors is leachate and the Board finds that the liquid is leachate.

The Board notes that “leachate” is defined in the Board’s rules as “liquid containing materials

removed from solid waste.” 35 Ill. Adm. Code 807.104. The Board is convinced that liquid

seeping from the landfill, as described by the Agency inspectors, clearly meets the definition of

leachate. The Board is not persuaded by Mr. Pelnarsh’s testimony concerning the color of liquid

in the area being similar to the liquid observed at the landfill site. The color of leachate can be

affected by the constituents in the water that contacts waste or even by the constituents in the

waste.

Next, the Board must determine whether leachate entered the waters of the State (Section

21(o)(2)). “Waters” are defined in the Act as “all accumulations of water” including artificial

and private in the State. 415 ILCS 5/3.550 (2008)). Thus, the retention pond and perimeter

ditches are waters of the State and the evidence overwhelmingly establishes that leachate was

found in those waters. Therefore, the Board finds that CLC violated Section 21(o)(2) of the Act

(415 ILCS 5/21(o)(2) (2008)) and Section 807.314(e) of the Board’s rules (35 Ill. Adm. Code

807.314(e)) by failing to adequately control leachate resulting in leachate entering the waters of

the State.

Finally, the Board must determine whether the evidence indicates that leachate exited the

landfill confines (Section 21(o)(3)). The Board finds that the observations of Mr. Weritz

establish that the leachate, after entering the perimeter ditches, was migrating offsite.

See

12/3Tr. at 72, Comp.Exh. 13f. Therefore, the Board finds that CLC violated Section 21(o)(3) of

the Act (415 ILCS 5/21(o)(3) (2008)).

Count VI (Water Pollution)

In Count VI the complaint alleges that that CLC caused or allowed water pollution in

violation of Section 12(a) of the 21(d)(2) of the Act (415 ILCS 5/12(a) and 21(d)(2) (2008)) and

Section 807.313 of the Board’s landfill regulations. 97Comp. at 40.

People’s Arguments.

The People state that these allegations are based on the May 22,

1995 inspection by Mr. Weritz and incorporate the arguments made above, under Count II, for

Count VI. Br. at 36.

The People argue that the evidence clearly indicates that leachate entered perimeter

ditches and the retention pond at the site and that there were seeps on the sides of the landfill.

Br. at 36. The People assert that dark staining indicates leachate flow and the “foul-smelling,

colored liquid” in the retention ponds supports a finding of violation. Br. at 36-37. The People

maintain that leachate is a contaminant and liquid coming into contact with the waste at the site

“may be presumed” to create a nuisance and that is all that is necessary for leachate to cause

water pollution. Br. at 37.

The People argue that respondents presented no evidence on this issue, noting that a

witness who provided an affidavit did not testify at hearing. Br. at 37. The People assert that the

respondents did not test the leachate to prove the off-color and odor were due to iron.

. The

People opine that there can be only one conclusion that Mr. Weritz correctly identified the

leachate entering the waters of the State.

The People note that Section 12(a) of the Act (415 ILCS 5/12(a) (2008)) prohibits

causing, threatening or allowing water pollution while Section 807.313 (35 Ill. Adm. Code

807.313) prohibits operating a landfill in a manner to cause, threaten or allow water pollution.

Br. at 27. Furthermore, the People note that Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2)

(2008)) prohibits conducting waste disposal in a manner that violates Board regulations.

Therefore, the People argue that the Board should find for the People on Count VI. Br. at 37-38.

Respondents’ Arguments.

Respondents set forth the same argument for this count as in

Count II above, but also add that the People have not proven that the liquid at the site resulted in

water pollution. Resp.Br. at 26-28. The respondents rely on the definition of water pollution at

Section 3.545 of the Act (415 ILCS 5/3.545 (2008)) to support the argument. Resp.Br. at 26.

The respondents maintain that the People have not established that the liquid created a nuisance,

or that the waters of the State were rendered harmful, detrimental or injurious to the public health

safety and welfare by discharge of the liquid. Resp.Br. at 28. The respondents assert that those

factors are prerequisites to a finding of water pollution.

. The respondents argue that the

Board should rule for CLC on this count.

Board’s Findings.

Having found that the liquid is leachate and that the leachate did

enter waters of the State and leave the landfill, the Board must now decide if CLC’s actions

resulted in water pollution. The Board is unconvinced by respondents’ argument that the People

have failed to prove a violation of Section 12(a) of the Act (415 ILCS 5/12(a) (2008)). The

Board is convinced that leachate in waters of the State will at a minimum “threaten” to “cause or

tend to cause water pollution”. Therefore, the Board finds that the evidence supports a finding

that CLC violated of Section 12(a) of the Act (415 ILCS 5/12(a) (2008)).

Count XIX (Financial Assurance)

Count XIX involves allegations that financial assurance was not timely increased in

violation of permit conditions and thus in violation of Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2008)). On October 3, 2002, the Board found that CLC had failed to increase

financial assurance within 90 days from October 24, 1996, in the amount of $1,431,360.

However, the Board found that there were issues of material fact as to whether or not CLC failed

to increase the financial assurance amount to $1,439,720 prior to the operation of the gas

extraction system. The Board will summarize the arguments of the parties and then make a

finding on the remaining issues in Count XIX.

People’s Arguments

The People argue that the facts establish that CLC failed to increase the financial

assurance prior to beginning the operation of the gas management system. Br. at 24. In support

of this argument the People note that Ms. Kovasznay inspected the site on March 31, 1999, and

the gas extraction system was running.

. Ms. Kovasznay testified that she heard the gas

turbines running and based on statements by Mr. Pelnarsh she determined that the gas extraction

system was running.

., 12/2Tr. at 21, 27. The People further note that Ms. Kovasznay noted

the information concerning the gas management system in her inspection report.

., Comp.Exh.

13i at 7.

In contrast, the People point out that Mr. Pelnarsh’s denials are based only on his

recollections and no reports were made by Mr. Pelnarsh of the inspections. Br. at 24-25. The

People argue that the Board should find Mr. Pelnarsh’s testimony and affidavits are not accurate.

Br. at 25. The People assert that the Board should find that CLC began operation of the gas

management system prior to securing the appropriate financial assurance in violation of special

condition 13 and Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2008). Br. at 25.

Respondents’ Arguments

The respondents argue that the People have failed to prove when the gas collection

system began to operate and therefore have failed to prove the violation. Resp.Br. at 22. The

respondents claim that the sole evidence presented by the People is that on March 31, 1999, Ms.

Kovasznay observed the gas collection system in operation.

. However, the respondents argue

that Mr. Pelnarsh testified that the system was being tested and that he did not remember making

a statement to Ms. Kovasznay that the system was in operation.

. The respondents maintain

that Ms. Kovasznay has no other evidence to support the allegation that the system was running.

Resp.Br. at 23. The respondents claim that the People have failed to establish that the system

was running and CLC should not be found in violation.

Board’s Findings

The key issue to be decided here is: when did the gas management system begin to

operate? The Board has reviewed the evidence in the record which is exclusively the testimony

and inspection report by Ms. Kovasznay and testimony of Mr. Pelnarsh. Ms. Kovasznay testified

that she heard the engines running for the system and was informed by Mr. Pelnarsh the system

had been running for a month. She noted these observations and conversations in her

contemporaneous narrative of the inspection.

See

Comp.Exh. 13l. Mr. Pelnarsh’s memory is

that the system was being tested and he does not recall telling Ms. Kovasznay that the system

was running. As before, the Board finds that the contemporaneous inspection narratives along

with the inspectors recall are more persuasive than Mr. Pelnarsh’s memory, which was not

supported by contemporaneous notes. In addition, Ms. Kovasznay indicated that the gas

management system was also running on July 20, 1999, and that Mr. Pelnarsh had been informed

that there was no permit to run the system both at the last inspection and on the phone.

See

Comp.Exh. 13n. Therefore, the Board finds that the gas management system was operating on

or before March 31, 1999, and as a result CLC violated permit conditions and Section 21(d)(1) of

the Act (415 ILCS 5/21(d)(1) (2008)).

Count XV (Gas Collection System Permit Condition)

Count XV alleges that CLC violated Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1)

(2008)) and special condition one of permit number 1996-240-SP. 97Comp. at 40. Specifically,

the complaint alleges that special condition one required CLC to provide to the Agency specific

information regarding the gas management system prior to the operation of the system and CLC

failed to do so. 97Comp. at 39-40. The Board will summarize the arguments of the parties and

then make a finding on the issues in Count XV.

People’s Arguments

The People argue that the facts regarding this alleged violation are similar to those argued

under Count XIX discussed above and relate to when the gas management system began

operation. Br. at 39. The People reiterate their arguments that Ms. Kovasznay’s testimony and

the inspection reports should be considered more credible than Mr. Pelnarsh’s statements. Br. at

39. The People maintain that responsibility for the gas collection system does not matter, as

CLC was responsible for providing the information to the Agency before the system began

operation. Br. at 40. The People argue that the Board should find that CLC violated Section

21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2008)) and special condition one of permit number

1996-240-SP.

Respondents’ Arguments

The Respondents agree that this issue is similar to Count XIX in that the issue is: when

did the gas management system begin to run? Resp.Br. at 30. The respondents assert that the

only evidence put forth by the People is the testimony of Ms. Kovasznay that she observed the

system running and heard the engines.

. The respondents maintain that Mr. Pelnarsh’s

testimony refutes the observations of Ms. Kovasznay in that he stated the system was being

tested.

. The respondents claim that Ms. Kovasznay’s testimony indicates she “does not know

the mechanics” of the system and she had no other evidence that the system was running.

The respondents opine that the People have not proven their case and argue that the Board should

find for CLC. Resp.Br. at 31.

Board’s Findings

Because the Board finds that the gas management system was operating on or before

March 31, 1999 (

See

Count XIX above), the Board also finds that CLC violated Section 21(d)(1)

of the Act (415 ILCS 5/21(d)(1) (2008)) and special condition one of permit number 1996-240-

SP.

Count XVII (Leachate Collection Permit Condition)

Count XVII alleges that CLC violated Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1)

(2008)) and special condition number eleven of supplemental permit 1996-240-SP. 97Comp. at

47. Specifically, the complaint alleges that on March 31, 1999, and July 20, 1999, CLC pumped

leachate into new cells for added moisture and did not properly dispose of the leachate at a

permitted facility. 97Comp. at 47. The Board will summarize the arguments of the parties and

then make a finding on the issues in Count XVII.

People’s Arguments

The People assert that 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

facility. Br. at 40. The People maintain that CLC was using leachate pumped from the landfill

to increase the moisture content of new waste disposal cells.

. The People rely on the

testimony of Ms. Kovasznay who testified that Mr. Pelnarsh told her that the leachate was being

used to increase moisture content of the clay used for liners. Br. at 41, 12/2Tr. at 26, 37. Ms.

Kovasznay also included this information on her inspection reports. Br. at 41, Comp.Exh. 13l,

13n. The People note that Mr. Pelnarsh disagrees with Ms. Kovasznay’s recall; however, Mr.

Pelnarsh did not make notes or reports about the inspections. Br. at 41-42. The People argue

that the Board should find that Mr. Pelnarsh’s denials are not credible. Br. at 42.

Respondents’ Arguments

Respondents argue that the People have not proven that CLC violated the permit

condition as all the evidence the People have is the testimony of Ms. Kovasznay. Resp.Br. at 31.

The respondents maintain the Mr. Pelnarsh’s testimony contradicts the testimony of Ms.

Kovasznay.

. The respondents assert that Mr. Pelnarsh’s testimony is credible and the People

have not proven the case. Resp.Br. at 31-32.

Board’s Findings

The Board is aware of the contradictory testimony on this issue. In this instance, Ms.

Kovasznay did not directly observe the pumping of leachate but based her narrative on

statements by Mr. Pelnarsh.

See

Comp.Exh. 13l and 13n. Mr. Pelnarsh states in his affidavit

that he informed Ms. Kovasznay that he was using stormwater from the retention pond to wet the

clay. Resp.Exh. 9 at 2. Mr. Pelnarsh stated that even if a small amount of leachate was in the

stormwater he “did not consider this depositing waste in an unpermitted area of the landfill.”

The Board finds that Mr. Pelnarsh’s own statements support a finding of violation. Mr.

Pelnarsh’s statement indicates that the liquid he used, even if stormwater, may have contained

leachate. Therefore, pursuant to the permit conditions, the liquid should have been treated. The

Board finds that the evidence supports a finding that CLC violated Section 21(d)(1) of the Act

(415 ILCS 5/21(d)(1) (2008)) and special condition number eleven of supplemental permit 1996-

240-SP.

Count XX

The People presented no evidence on this count and ask that this count be dismissed. The

Board will dismiss Count XX.

Conclusion on CLC Violations

In ruling on two motions for summary judgment , the Board previously adjudicated CLC

in violation of the Act and Board regulations as alleged in Counts III (landscape waste), IV

(inadequate financial assurance), Count V (failed to timely file significant modification permit),

Counts VII, VIII, IX, and X (daily operations at the site), Count XIII (waste tires), Count XVI

(erosion), Count XIV (temporary fencing), Count XIX (in part financial assurance), and Count

XXI (revised cost estimates). The Board finds today that CLC is also in violation of the Act and

Board regulations as alleged in Count I (refuse and litter), Count II (leachate), Count VI (water

pollution), Count XV (gas management system), Count XVII (improper use of leachate), and

Count XIX (remaining allegations). The Board dismisses Count XX (improper use of leachate).

Thus, the Board has found CLC violate numerous sections of the Act and Board regulations as

alleged in a total of 17 counts.

PRUIMS’ ALLEGED VIOLATIONS

The Board will begin by summarizing a legal argument made by the People regarding the

liability of the Pruims given their status as officers and sole shareholders of CLC. The Board

will not make a finding in that Section of the opinion but will make general comments on the

legal arguments. The Board will then summarize the arguments and issues on each of the counts

that have not been adjudicated. The Board will arrange the counts based on the allegations and

facts relating to the counts, thus the counts are not discussed chronologically.

Personal Liability of Pruims

People’s Argument

The People argue that Robert and Edward Pruim should be held personally liable for the

violations alleged in the complaint. Br. at 4. The People assert that the Act does not limit

liability to corporations or business and in the two complaints the People allege similar or

identical violations against the Pruims as alleged against CLC.

. The People maintain that the

Pruims can be held individually liable for “personal and direct actions” that constitute a violation

of the Act. Br. at 5. The People also advance the argument that the Board consider applying the

“responsible corporate officer doctrine”. Br. at 7. The Board will summarize these arguments in

turn.

Personal and Direct Involvement.

The People rely on three cases for the proposition

that personal liability of a corporate officer can be found for violations of the Act. Br. at 5-6.

The People cite to People v. Agpro Inc. & David Schulte, 345 Ill. App. 3d 1011, 803 N.E.2d

1007 (2nd Dist. 2004), which is the only case decided after a “full evidentiary hearing” as well as

People v. C.J.R. Processing, Inc., 269 Ill. App. 3d 1013, 647 N.E.2d 1035 (3rd dist. 1995) and

People v. Tang, 346 Ill. App. 3d 277, 805 N.E.2d 243 (1st Dist. 2004). Br. at 5-6. In Agpro, the

People note that the court affirmed a finding of liability of the corporate officer defendant,

recognizing that individual liability could be found based on an individual’s personal

involvement. Br. at 5. The People assert that the court further found that an officer was not

required to physically commit the violations to be held liable.

The People argue that in both C.J.R. Processing and Tang, the court also held that

corporate officers can be held responsible for their “personal involvement or active participation”

in violations of the Act. Br. at 6. More specifically, in C.J.R. Processing the court found that

simply alleging that the individual caused or allowed a violation was sufficient, while in Tang

the court found that the State must allege personal involvement or active participation.

. The

People argue that the Board should apply the Agpro and C.J.R. Processing cases here because

those cases “more accurately apply the Act’s stated policy of holding those actually responsible

liable for violations.”

. However, the People assert that “overwhelming” evidence of personal

and direct involvement by the Pruims in the violations was presented at hearing. Br. at 6-7.

“

Responsible Corporate Officers Doctrine”.

The People ask that the Board also

consider holding the Pruims liable under the “responsible corporate officers doctrine” theory of

liability. Br. at 7. The People explain that the responsible corporate officers doctrine imposes

liability on a corporate officer with the responsibility for compliance, if that officer fails to

proactively prevent violations. Br. at 7, citing 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 People assert that the responsible corporate

officer doctrine differs from the concept of direct liability because the doctrine does not require

personal involvement of the corporate officer. Br. at 7.

The People assert that the doctrine has been used in several states and because the

doctrine focuses on the ability to control a facility, the doctrine is consistent with Agpro and

C.J.R. Processing. Br. at 7-8, citing Comm’r, Indiana. Department of Environmental

Management v. RLG, Inc., 755 N.E.2d 556 (Ind. 2001); BEC Corp. v. Department of

Environmental Protection, 775 A.2d 928 (Conn. 2001); State of Washington Department 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). The People maintain that the

evidence proves that the Pruims were personally and directly involved in the act that lead to

violations, including violations which the Board has already found CLC to have committed. Br.

at 8.

The People maintain that the Pruims were the sole owners and officers of CLC from 1993

through 2000. Br. at 8. The main office for CLC was never at the landfill and financial affairs

including writing checks, paying bills and establishing credit was done at the main office.

Records were also maintained at the main office. Br. at 9. The Pruims were the only persons

authorized to sign checks for CLC and they provided personal guarantees for dumping royalties

to Morris.

. The People note that the Pruims also provided personal guarantees for financial

assurance and one of them signed all permit applications and reports. Br. at 9-10.

Respondents’ Arguments

The respondents’ argue that the evidence at hearing was insufficient to establish personal

liability for the Pruims on all counts. Resp.Br. at 2. The respondents claim that in order to

attach a personal liability the evidence must establish by a preponderance that the Pruims were

directly and personally involving in the acts giving rise to the alleged violations.

. The

respondents concede that the Pruims managed some corporate issues from an office 60 miles

away from the landfill; however, the respondents assert that the Pruims were not involved in the

day-to-day operations and had no involvement in the acts giving rise to the violations.

Personal and Direct Involvement.

The respondents argue that in order to find the

Pruims liable for violations the Board must find that the Pruims had personal involvement or

active participation in the acts resulting in the violations. Br. at 6, citing Tang. The respondents

assert that finding the Pruims actively participated in the management of CLC is not sufficient.

., People v. Petco Petroleum, 363 Ill. App. 3d 613,623, 841 N.E.2d 1065, 1073 (4th Dist.

2006). The respondents argue that two cases have been decided after full evidentiary hearing

and both cases support respondents arguments. Br. at 7. The respondents maintain that in Petco

Petroleum the court did not find the corporate officer to be personally liable, while in Agpro the

court did find liability.

. However, the respondents argue that an analysis of the court’s

findings supports the respondents’ argument that the Pruims should not be held personally liable.

The respondents assert that the facts of Petco Petroleum are analogous to the facts in this

case. Br. at 7-9. Further, the respondents assert that in Agpro the court cited to specific evidence

of the president’s involvement. Br. at 11-12. The respondents maintain that the State has not

provided sufficient evidence of the Pruims involvement in the operations to establish liability

under either Petco Petroleum or Agpro. Br. at 9-10.

“

Responsible Corporate Officers Doctrine”.

The respondents argue that the Board

should not apply the responsible corporate officers doctrine as the People failed to cite any

Illinois case law on point and the cases from other jurisdictions are distinguishable. Br. at 13.

The respondents specifically take issue with the People’s claim that the doctrine differs from the

concept of direct liability because it does not require personal involvement, the respondents

assert that an analysis of case law does not support this claim.

The respondents maintain that the Minnesota case did not decide the applicability of the

doctrine; while the Lundgren case from Washington had a specific finding of hands on control.

Br. at 13. Furthermore, the respondents assert that Lundgren relies on U.S. v. Gulf Park Water

Co., Inc. 972 F.Supp 1056 (S.D.Miss. 1997) where liability was found when the officer exercised

hand on control of the facility.

. The respondents go on to argue that the Indiana case relied

heavily on the officer’s admission of responsibility and in BEC Corp the court emphasized the

officer’s control over the site. Br. at 14.

The respondents argue that the State has not presented a difference between active

participation as applied by the Illinois courts and the doctrine. Br. at 14. Therefore, the

respondents maintain that the Board should not apply the doctrine.

People’s Reply

The People argue that the Board should apply the responsible corporate officers doctrine

and find the Pruims liable for operational violations. Reply at 7. The People assert that the

evidence shows the Pruims were responsible for all finances, permits, arrangements with the

landfill owner, and the Pruims controlled the amount of material disposed.

. The People claim

that the Pruims are attempting to shift liability to Mr. Pelnarsh who had no control over finances,

was not provided dumping records and had no knowledge of permits.

. The People maintain

that the Board has found CLC liable for most of the operating violations and the Pruims were the

only persons with the authority to prevent the violations. Reply at 8. The People assert that

allowing the Pruims “to escape liability because of the concurrent existence of a corporation that

they controlled” would defeat the purposes of the Act.

Board’s Comments

After a careful review of the cases cited by the People and respondents, the Board

declines to adopt the responsible corporate officers doctrine in this case. The Illinois courts have

consistently held that liability under the Act for a corporate officer requires personal involvement

or active participation in violation of the Act. C.J.R. Processing, 269 Ill. App. 3d at 1018, 647

N.E.2d 1038; Tang

, 346 Ill. App. 3d 289, 805 N.E.2d 254-5. The People have presented no

persuasive authority or controlling authority which alters that well-settled holding. Furthermore,

the Board notes that in responding to a motion to dismiss, the People urged the Board to apply

C.J.R. Processing

for purposes of reviewing the pleadings.

See

People v. Edward and Robert

Pruim, PCB 04-207, (Nov. 4, 2004). Therefore, the Board will examine each of the alleged

violations to determine if the People have proven that the Pruims had either personal

involvement or were actively participating in acts which resulted in violations.

Count I, II, III, VI and XII (Daily Management of the Site)

Counts I, II, III, VI and XII all involve the daily operations of the landfill including the

management of refuse and litter at the site and leachate.

See

04Comp. at 7, 8-9, 11, 18, and 33.

These alleged violations are related to landfill maintenance, supervision, and daily operation.

The Board will summarize the arguments by both parties on each count and then make the

Board’s finding for each count.

People’s Arguments on Count I

In Count I, the complaint alleges violations of Sections 21(d)(2), 21(o)(1), (5) and (12) of

the Act (415 ILCS 5/21(d)(2), 21(o)(1), (5) and (12) (2008)) and 35 Ill. Adm. Code 807.306.

04Comp. at 7. The People argue that these violations occurred during inspections made by the

Agency between 1994 and 1999. Br. at 32. Specifically, the People point to testimony of Mr.

Weritz and inspection reports that include observations by Mr. Weritz of litter present in the

water in the perimeter ditches and uncovered waste from the previous operating day.

. The

People also point to Ms. Kovasznay’s testimony and inspection reports which indicate

observations of blowing litter and statements made by Mr. Pelnarsh. Br. at 33.

The People take issue with Mr. Pelnarsh’s testimony and deposition statement that he did

not tell Mr. Weritz that the litter was not collected each day. Br. at 33. The People point out that

Mr. Pelnarsh’s testimony is based on his recollections and he did not prepare reports of the

inspections.

. The People argue that Mr. Weritz’s testimony supported by the inspection

report should be “considered far more credible” than the recollections of Mr. Pelnarsh about a

conversation eight years prior.

The People argue that the Board should find for the People as the record establishes that

refuse was present in standing or flowing water in violation of Section 21(o)(1) of the Act (415

ILCS 5/21(o)(1) (2008)). Br. at 33-34. Further the People argue that the record supports a

finding that refuse from a previous operating day remained uncovered in violation of Section

21(o)(5) of the Act (415 ILCS 5/21(o)(5) (2008)) and Section 807.306 of the Board’s rules (35

Ill. Adm. Code 807.306). Br. at 34. Finally, the People maintain that by proving violation of

Section 807.306, a violation of Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) has

been established.

People’s Arguments on Count II

The People argue that Mr. Weritz’s inspections in 1994 and 1995 support a finding of

violation as alleged in Count II of the complaint. Br. at 34. The People note that Mr. Weritz

observed leachate seeps that were flowing to the perimeter ditches. Br. at 34-35. The People

argue that Mr. Weritz identified the liquid as leachate based on the color and odor of the liquid.

Br. at 35. The People claim that the presence of the liquid in the perimeter ditches and the

retention pond are persuasive that the respondents failed to stop leachate from flowing out of the

sides of the landfill.

. The People assert that the respondents “make much of the fact that no

samples” of the leachate were taken; however, the respondents do not propose what test should

be performed.

. The People note that respondents assert that the red color is due to iron

deposits, but no evidence was presented to support this claim.

The People argue that the leachate entered surface waters in the perimeter ditches and

retention pond. Br. at 35-36. The People maintain that causing or allowing leachate to enter the

perimeter ditches and retention pond is a violation of Section 21(o)(2) of the Act (415 ILCS

5/21(o)(2) (2008) and Section 807.314(e) of the Board’s rules (35 Ill. Adm. Code 807.314(e)). .

Finally, the People maintain that by proving violation of Section 807.314(e), a violation of

Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) has been established.

People’s Arguments on Count VI (Water Pollution)

The People allege in Count VI that the Pruims caused or allowed water pollution in

violation of Section 12(a) of the 21(d)(2) of the Act (415 ILCS 5/12(a) and 21(d)(2) (2008)) and

Section 807.313 of the Board’s landfill regulations. 04Comp. at 18. The People state that these

allegations are based on the May 22, 1995 inspection by Mr. Weritz and incorporate the

arguments made above under Count II for Count VI. Br. at 36.

The People argue that the evidence clearly indicates that leachate entered perimeter

ditches and the retention pond at the site and seeps on the sides of the landfill. Br. at 36. The

People assert that dark staining indicates leachate flow and the “foul-smelling, colored liquid” in

the retention ponds supports a finding of violation. Br. at 36-37. The People maintain that

leachate is a contaminant and liquid coming into contact with the waste at the site “may be

presumed” to create a nuisance and that is all that is necessary for leachate to cause water

pollution. Br. at 37.

The People argue that respondents presented no evidence on this issue, noting that a

witness who provided an affidavit did not testify at hearing. Br. at 37. The People assert that the

respondents did not test the leachate to prove the off-color and odor were due to iron.

. The

People opine that there can be only one conclusion: that Mr. Weritz correctly identified the

leachate entering the waters of the State.

The People note that Section 12(a) of the Act (415 ILCS 5/12(a) (2008)) prohibits

causing, threatening or allowing water pollution while Section 807.313 (35 Ill. Adm. Code

807.313) prohibits operating a landfill in a manner to cause, threaten or allow water pollution.

Br. at 27. Furthermore, the People note that Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2)

(2008)) prohibits conducting waste disposal in a manner that violates Board regulations.

Therefore, the People argue that the Board should find for the People on Count VI. Br. at 37-38.

People’s Arguments on Count III (Landscape Waste)

The People note that on October 3, 2002, the Board found that CLC had violated Section

22.22(c) of the Act (415 ILCS 5/22.22(c) (2008)) by failing to properly dispose of landscape

waste. Br. at 38. The People allege that the Pruims also violated Section 22.22(c) of the Act

(415 ILCS 5/22.22(c) (2008)) by failing to properly dispose of landscape waste. 04Comp. at 11;

Br. at 38. The People note that Section 22.22(c) of the Act (415 ILCS 5/22.22(c) (2008))

prohibits owners and operators of landfills from accepting or disposing of mixed

landscape/municipal waste.

. The People assert that because of the overall authority and

involvement in the management of the landfill the Pruims should be considered operators.

The People ask the Board to apply the principles of the responsible corporate officer doctrine and

find for the People on Count III.

People’s Arguments on Count XII (Disposal of Used Tires)

The People note that on October 3, 2002, the Board found that CLC had violated Section

55(b-1) of the Act (415 ILCS 5/55(b-1) (2008)) by failing to properly dispose of used tires. Br.

at 38. The People allege that the Pruims also violated Section 55(b-1) of the Act (415 ILCS

5/55(b-1) (2008)) by failing to properly dispose of used tires. 04Comp. at 33; Br. at 38-39. The

People note that Section 55(b-1) of the Act (415 ILCS 5/55(b-1) (2008)) prohibits persons from

accepting or disposing of used tires mixed with other waste.

. The People assert that because

of the overall authority and involvement in the management of the landfill the Pruims should be

considered operators.

. The People ask the Board to apply the principles of the responsible

corporate officer doctrine and find for the People on Count XII. Br. at 39.

Respondents’ Arguments on Counts I, II, III, VI, and XII

Respondents claim that the People seek a finding of liability against the Pruims based the

responsible corporate officer doctrine; however, the respondents reassert that this doctrine is not

applicable to establish personal liability of the Pruims and that the cases relied upon by the

People instead support the respondents’ position. Resp.Br. at 28-29. The respondents assert that

in the Indiana case, RLG, Inc., the court found that the corporate officer’s acts facilitated the

violation and that is not the case with the Pruims. Resp.Br. at 29. The respondents rely on the

testimony of the Agency inspectors who indicated that Mr. Pelnarsh was the person who the

inspectors dealt with and who accompanied them on inspections. Resp.Br. Br. at 29, 12/2Tr. at

22, 42, 43, 12/3Tr. at 83, 84. Mr. Pelnarsh testified that he made day to day decisions with

regard to the landfill and had done so since 1983.

., 12/4Tr. at 27, 28. The respondents also

note that the Pruims testified that neither of them was involved in day-to-day management of the

site. Resp.Br. at 29-30, 12/4Tr. at 52-53, 54-56, 58, 93-94, 96, and 98. Based on this testimony

and the legal arguments above, the respondents assert that the Pruims cannot be found liable for

the alleged violations in Counts I, II, III, VI, and XII. Resp.Br. at 30.

Board’s Findings on Counts I, II, III, VI, and XII Alleged Against Pruims

The Board notes that CLC has been found in violation on each of these counts either in

today’s opinion or in ruling on prior motions for summary judgment. However, the Board

cannot find the Pruims liable for these violations. The evidence in the record indicates that Mr.

Pelnarsh made the day-to-day site management decisions. The Pruims were in an office 60 miles

away, and the record contains no evidence that the Pruims directed the day-to-day operations of

the site. Therefore, the Board cannot find sufficient evidence of personal involvement or active

participation to find a violation on these counts. Therefore, the Board finds for the Pruims and

dismisses Counts I, II, III, VI and XII.

Count V (Significant Modification Permit)

The Board notes that on October 3, 2002, the Board found that CLC violated Section

21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) and Section 814.104 of the Board’s landfill

rules (35 Ill. Adm. Code 814.104) by failing to timely file a significant modification permit

application. Count V alleges that the Pruims violated Section 21(d)(2) of the Act (415 ILCS

5/21(d)(2) (2008)) and Section 814.104 of the Board’s landfill rules (35 Ill. Adm. Code

814.104). 04Comp. at 15. Specifically, the complaint alleges that the Pruims failed to cause

CLC to file a request for a significant modification permit in a timely manner. The Board will

summarize the arguments of the parties and then make a finding on this count.

People’s Arguments

The People assert that the Pruims admit in the answers to the complaint that a significant

modification permit application was not filed until August 5, 1996. Br. at 26-27. The People

maintain that the Pruims were the sole owners and officers of CLC during the relevant period

and were the only persons with authority to cause the company to take action. Br. at 27. The

People argue that Mr. Pelnarsh did not have responsibility for permit applications and the Pruims

had arranged for and signed the previous applications for permits.

., Comp.Exh. 1a, 1e.

Furthermore, the People argue that Edward Pruim admitted he was involved in the filing of the

significant modification permit.

., 12/4Tr. at 85.

The People assert that the Pruims knew of the application deadline and they made a

business decision not to timely pursue the significant modification permit. Br. at 27-28.

Specifically, the People assert that the Pruims wanted to expand the landfill to include Parcel A

and the Pruims testified that the delay in filing the application was due to negotiations for the use

of Parcel A. Br. at 28. The People maintain that the Pruims: 1) caused and allowed the disposal

of almost one million cubic yards of waste in Parcel B during 1994 and 1995; 2) failed to request

a variance from the Board prior to the 1993 deadline; 3) did not close down the landfill while

negotiating for access to Parcel A; and 4) did not file a significant modification permit

application for Parcel B alone.

The People argue that the Board found that the late filing of the significant modification

permit for the landfill was a violation of the Act and regulations for CLC. The People state that

the Board should find the Pruims personal and direct involvement in these violations result in

violations of Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) and Section 814.104 of

the Board’s landfill rules (35 Ill. Adm. Code 814.104).

Respondents’ Arguments

The respondents did not directly address this issue in the brief other than in charts

concerning each count.

See e.g.

Resp.Br. at 4. In those charts respondents argue for a finding of

no violation against the Pruims.

Board’s Findings on Count V as Alleged Against the Pruims

The evidence in the record demonstrates that the Pruims were solely responsible for

permits. Edward Pruim admitted that “we approached” Morris about negotiating for the rights to

Parcel A and after receiving the rights Andrews was employed to prepare the significant

modification permit. 12/4Tr. at 87-88. The Pruims signed the permits and Mr. Pelnarsh stated

he did not have responsibility for the permits and he did not know who hired Andrews. Given

the Pruims’ signatures on the permit applications as well as their testimony concerning the

significant modification permit, the Board finds that the Pruims were personally involved and

had active participation in the permitting process. Therefore the Board finds that the Pruims are

liable for CLC’s failure to timely file a permit application. The Board find that the Pruims

violated Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) and Section 814.104 of the

Board’s landfill rules (35 Ill. Adm. Code 814.104) by failing to timely file a significant

modification permit application.

Count IV and Count XVII (Financial Assurance)

The Board notes that on October 3, 2002, the Board found CLC had violated Sections

21(d)(2) and 21.1 of the Act (415 ILCS 5/21(d)(2) and 21.1 (2008)) and 35 Ill. Adm. Code

807.601(a) and 807.603(b)(1) of the Board’s rules by failing to provide sufficient financial

assurance. Count IV alleges that the Pruims violated Sections 21(d)(2) and 21.1(a) of the Act

(415 ILCS 5/21(d)(2) and 21.1(a) (2008)) and Sections 807.601(a) and 807.603(b)(1) of the

Board’s landfill regulations (35 Ill. Adm. Code 807.601(a) and 807.603(b)(1)) by failing to

provide sufficient financial assurance. Count XVII alleges that the Pruims violated Section

21(d)(1) of the Act and special condition number 13 of permit number 1996-240-SP. 04Comp.

at 44. Specifically, the complaint alleges that the Pruims were required to provide financial

assurance within 90 days from October 24, 1996, in the amount of $1,431,360 and to increase the

amount to $1,439,720 prior to the operation of the gas extraction system. 04Comp. at 43. The

Board will summarize the arguments by both parties on each count. The Board will then make a

finding on each count.

Count IV

People’s Arguments.

The People assert that the Pruims admit in their answers to the

complaint that CLC’s permit required financial assurance to be posted in the amount of

$1,342,500 and admit to failing to arrange the financing to increase financial assurance in timely

manner. Br. at 21. The People argue that the Pruims should be considered operators for

purposes of the Act because the Pruims are the owners and managers of CLC.

. Further the

People maintain that the Pruims had the sole authority and ability to finance the arrangement of

financial assurance for the landfill.

The People note that only the Pruims had the authority to sign checks for CLC. Br. at 22.

The People also point out that the Pruims both admitted at hearing that only they could have

raised the financial assurance.

. The People assert that the Pruims provided personal

guarantees for Frontier Insurance and thus had a personal motive in deciding when and how

much of their resources to put to risk. Br. 21-22. The People argue that these facts indicate that

the Pruims failed to update the financial assurance for three years and by failing to increase the

financial assurance violated Section 21(d)(2) and 21.1 of the Act (415 ILCS 5/21(d)(2) and 21.1

(2008)) and 35 Ill. Adm. Code 807.601(a) and 807.603(b)(1) of the Board’s rules.

Respondents’ Arguments.

The Board notes that the respondents did not specifically

address this count in the briefs; however, respondents did argue generally that the Pruims should

not be held liable for the violations (

see supra

35-36). In addition, the respondents assert that the

Pruims maintained financial assurance only in their capacity as officers of the corporation and

not as individuals. Resp.Br. at 22. The respondents further maintain that the Pruims had no

direct or personal involvement in the allegations that they failed to provide financial assurance.

People’s Reply.

The People argue that the Pruims personally caused the financial

assurance violations and as sole owners the decision not to expend resources ultimately

benefitted the Pruims. Reply at 5.

Board’s Findings on Count IV as Alleged Against the Pruims

. The testimony of the

Pruims indicates that they worked on financial assurance and that they personally guaranteed

some bank loans for CLC, provided personal guarantees for Frontier Insurance, and personally

guaranteed royalties to Morris. In addition, the Pruims were the only parties authorized to sign

checks for CLC and the Pruims guaranteed royalties for dumping to Morris. These facts

establish a personal and active involvement by the Pruims in CLC’s financial matters, especially

in light of the direct mingling of personal and corporate finances by personally guaranteeing

corporate loans and insurance, in addition to royalty payments to Morris. Therefore, the Board

finds that the Pruims were personally involved and had active participation in attempts to obtain

and the failure to obtain financial assurance. The Board finds that the Pruims violated Sections

21(d)(2) and 21.1(a) of the Act (415 ILCS 5/21(d)(2) and 21.1(a) (2008)) and Sections

807.601(a) and 807.603(b)(1) of the Board’s landfill regulations (35 Ill. Adm. Code 807.601(a)

and 807.603(b)(1)) by failing to provide sufficient financial assurance for CLC.

Count XVII (Financial Assurance)

People’s Arguments.

The People argue that the Pruims admit they were required to

upgrade financial assurance as delineated in Special Condition 13. Br. at 25-26. The People

“repeats its argument for liability” set forth in Count IV (

see

above). Br. at 26. The People

assert that clearly only the Pruims had the authority and capacity to increase the amount of

financial assurance and by failing to do so violated Special Condition 13 and Section 21(d)(1) of

the Act (415 ILCS 5/21(d)(1) (2008)).

Respondents’ Arguments.

The respondents also argue that the People have failed to

prove when the gas collection system began to operate and therefore have failed to prove the

violation. Resp.Br. at 22. The respondents claim that the sole evidence presented by the People

is that on March 31, 1999, Ms. Kovasznay observed the gas collection system in operation.

However, the respondents argue that Mr. Pelnarsh testified that the system was being tested and

that he did not remember making a statement to Ms. Kovasznay that the system was in operation.

. The respondents maintain that Ms. Kovasznay has no other evidence to support the

allegation that the system was running. Resp.Br. at 23.

The respondents assert that the Pruims are in no way liable for failing to increase the

financial assurance as the Pruims had nothing to do with the gas management system. Resp.Br.

at 23. The respondents rely on testimony indicating that: 1) only Mr. Pelnarsh ever

accompanied the inspectors, 2) Ms. Kovasznay had no evidence of personal or direct

involvement of the Pruims, 3) Mr. Pelnarsh was in charge of day-to-day operations, and 4) KMS

installed the gas collection system and the Pruim expected that KMS would increase the financial

assurance. Resp.Br. at 23-24. The respondents assert that the People have failed to make a case

against the Pruims individually for any alleged violation for failure to increase the financial

assurance prior to operation of the gas collection system. Resp.Br. at 24.

People’s Reply.

The People argue that the Pruims personally caused the financial

assurance violations and as sole owners decisions not to expend resources ultimately benefitted

the Pruims. Reply at 5.

Board’s Findings on Count XVII as Alleged Against the Pruims.

The Board has

found that the gas management system began operation on or before March 31, 1999, and that

CLC violated Section 21(d)(1) of the Act and special condition number 13 of permit number

1996-240-SP by failing to update the financial assurance prior to the gas management system

beginning to operate. Also as indicated above in Count IV, the Board finds that the Pruims were

personally involved and had active participation in attempts to obtain and the failure to obtain

financial assurance. The Board finds that the Pruims violated Section 21(d)(1) of the Act and

special condition number 13 of permit number 1996-240-SP by failing to update the financial

assurance.

Counts VII, VIII, IX, and X (Overheight Violations)

The Board notes that on October 3, 2002, the Board found CLC had violated Sections

21(a), 21(d)(1) and 21(o)(9) of the Act (415 ILCS 5/21(a), 21(d)(1), and 21(o)(9) (2008)) by

allowing the placement of waste in the landfill above the permitted height of the landfill. Counts

VII, VIII, IX and X allege violations relating to the placement of waste in the landfill in areas

that were above the permitted height of the landfill. The Board will summarize the arguments by

both parties. The Board will then make a finding.

People’s Arguments

Capacity.

The People assert that only the Pruims had the authority to shutdown the

landfill operations once parcel B of the landfill was filled to capacity and yet records indicate

that the Pruims continued to allow waste disposal in Parcel B even after Parcel B was

approaching the maximum permitted elevation. Br. at 11-12. The People note that the annual

landfill capacity certification forms were signed by the Pruims. Br. at 12. The People assert that

those forms establish that the Pruims knowingly and intentionally allowed the landfill to exceed

the permitted capacity.

In support of this argument, the People point to the January 18, 1995 report signed by

Edward Pruim that indicates only 264,290 cubic yards of capacity remained on April 1, 1994, but

that 457,008 cubic yards were deposited. Br. at 12, citing Comp.Exh. 14d. Furthermore, the

People point to the records of Morris which show that between April 1, 1994 and August 31,

1994, a total of 270, 588 cubic yards of waste were deposited in the landfill. Br. at 13, citing to

Comp.Exh. 29. The People assert that the evidence establishes that on August 31, 1994, the

landfill was completely full and yet the Pruims did not close Parcel B to waste disposal.

The People maintain that despite reporting to the Agency that the capacity was zero in

1994, the landfill continued to accept waste. Br. at 14. The People note that the January 15,

1997 report signed by Robert Pruim reported that between January 1, 1995 and December 31,

1995 the landfill had disposed 540,135 cubic yards of waste. Br. at 14, citing Comp.Exh. 14e.

The People assert that the two reports signed by the Pruims establish that the Pruims knew of the

overcapacity at the site and failed to stop dumping or to close the site. Br. at 14-15.

Overheight.

The People argue that a 1989 application for vertical expansion was signed

by Edward Pruim and subsequently granted by the Agency allowed for a final elevation of 580

feet above mean sea level. Br. at 15, Comp.Exh. 1a. The People assert that the subsequent

application for a significant modification permit, signed by Robert Pruim, shows existing

conditions at the site with a final elevation over 580 feet. Br. at 15, Comp.Exh. 1e. The People

point to an addendum to the significant modification permit that provides that the overheight is

on the order of 475,000 cubic yards. Br. at 16, Comp.Exh. 1f. The People maintain that that

addendum was filed over two and a half years after Parcel B had reached capacity and confirms

both the excessive dumping and the Pruims unwillingness to comply with permits and the Act.

Br. at 16.

Credibility.

The People argue that the testimony of Robert Pruim is not credible. Br. at

16. The People assert that despite twice reporting to the Agency that the landfill had no

remaining capacity and the acknowledgement of overheight in the significant modification

permit, Robert Pruim denied the landfill was overheight. Br. at 16. The People discount Robert

Pruim’s claims that the engineer had indicated to him that the capacity issue was “mathematical”

and would be corrected when the significant modification combined Parcels A and B. Br. at 17.

The People assert that Robert Pruim is blaming someone else for Robert Pruim’s own admission

of violation and the Board should not give consideration to his statements.

The People assert that Robert Pruim “completely misrepresents” the 1997 landfill

capacity report as prior to 1996 dumping occurred only in Parcel B. Br. at 17. The People argue

that the significant modification permit opened up capacity in Parcel A and the 1997 landfill

capacity report covers both parcels. Br. at 17, Comp.Exh. 14f. The People maintain that to add

all the capacity in Parcel A and argue that this is a mathematical correction to previous reports on

Parcel B misrepresents the record. Br. at 18.

The People note that the 1997 significant modification permit addendum was completed

after the submission of the 1997 landfill capacity report. Br. at 18, Comp.Exh. 1f. The People

argue that the later submission of the addendum demonstrates that the amount of overheight in

Parcel B was 475, 000 cubic yards.

Counts VII, VIII, IX, and X.

The People argue that the evidence supports a finding that

the Pruims caused and allowed deposition of waste above the permitted area for the disposal of

waste and thus violated Section 21(o) of the Act (415 ILCS 5/21(o) (2008)) as alleged in Count

VII. Br. at 19. Furthermore, the People assert that the evidence establishes that the Pruims

caused and allowed waste to be disposed of in an area not permitted under the permit and thus

violated Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2008)) as alleged in Count VIII.

The People maintain that the Pruims caused and allowed the consolidation of waste from

one or more sources above the permitted height and thereby violated Section 21(a) of the Act

(415 ILCS 5/21(a) (2008)) as alleged in Count IX. Br. at 20. The People further maintain that

the Pruims violated Section 21(d)(1) of the Act (415 ILCS 5.21(d)(1) (2008)) by violating

Standard Condition 3 of Permit No. 1989-005-SP as alleged in Count X.

Respondents’ Arguments

The respondents argue that the evidence is insufficient to establish personal liability of

the Pruims. Resp.Br. at 15. The respondents claim that there is no evidence that the Pruims had

any personal knowledge or involvement in any acts resulting in the alleged overheight of Parcel

. The respondents argue that to find the Pruims were in violation of the Act, the Board

must determine that the Pruims were personally involved or directly participated in act which

lead to the overheight violation.

. The respondents maintain that if there was evidence that the

Pruims knowingly ordered the operator to place waste above the permitted height, that would be

the type of evidence necessary to establish personal liability.

. However, the respondents

argue that the only competent evidence establishes that the Pruims did not know that waste was

placed over the permitted height. Resp.Br. at 15-16.

The respondents argue that none of the People’s witnesses could testify that the Pruims

had direct or personal involvement in filling Parcel B above 580 feet. Resp.Br. at 16.

Respondents opine that the only basis for the People’s case are the landfill certification capacity

forms signed by the Pruims and these forms are the basis for the People’s claim that the Pruims

had direct and personal involvement in filling the landfill above the permitted height.

The respondents assert that the evidence establishes that the Pruims had no knowledge of

the overheight. Resp.Br. at 17. The respondents rely on testimony from Edward Pruim that he

had no knowledge of the overheight until noticed in writing by the State and Robert Pruim

contested the statement in the report that there was no capacity. Resp.Br. at 17, 12/4Tr. at 82,

48. The respondents concede that the Pruims signed the forms; however, the respondents assert

that they signed those reports as corporate officers and not individually. Resp.Br. at 17, 12/4Tr.

at 47,76.

The respondents argue that the Pruims and Mr. Pelnarsh believe that Parcel B is not filled

to capacity, even today because there is capacity where the building stood. Resp.Br. at 17,

12/4Tr. at 48, 78-79, 30-31. Also, the respondents argue that there are over 1.7 million cubic

yards of capacity left in Parcels A and B, with Parcel B having 100,000-200,000 cubic yards of

space. Resp.Br. at 17-18. The respondents take issue with the People’s argument that Robert

Pruims’ testimony regarding capacity was not credible and point out that the hearing officer

found no issues of credibility. Resp.Br. at 18. The respondents assert that the People presented

no evidence to rebut Robert Pruim’s testimony and that the Board must also consider that there

has been no actual proof submitted that the landfill is overheight.

The respondents point to a study produced by Rapier Surveyors (Resp.Exh. 11) for the

State, which indicates that there are only 66,589 cubic yards of material above the permitted

elevation. Resp.Br. at 18-19. The respondents claim that there has been no “empirical proof of

any kind” that Parcel B was actually filled above 580 feet and in fact the capacity forms do not

talk about permitted elevations or the amount of waste above permitted elevations. Resp.Br. at

19. The respondents argue that based on the evidence the Board should find that the Pruims did

not have direct and personal involvement in acts leading to the violations. Resp.Br. at 20.

People’s Reply

The People note that the Board has already found that CLC was in violation of the Act

and Board rules by dumping waste outside the permitted boundaries. Reply at 3. The People

argue that substantial evidence was submitted at hearing corroborating the Board’s earlier

finding and that the Pruims knowingly continued to dump waste after Parcel B had reached

capacity.

. The People reiterate that landfill capacity certification forms and permit

applications support the People’s allegations and respondents claims are “merely an attempt to

avoid an appropriate civil penalty.” Reply at 3-4. Furthermore, the signatures of the Pruims on

the forms and applications establish that the Pruims are responsible for the alleged violations.

Reply at 4.

Board’s Findings on Counts VII, VIII, IX, and X as Alleged Against the Pruims

The record establishes that the Pruims were signing landfill capacity certification forms

that indicated no space was left in the landfill and yet the landfill remained open accepting waste.

Mr. Pelnarsh may have been able to close the landfill for a day or so due to weather, but the

testimony establishes that only the Pruims could decide to stop accepting waste at the landfill.

Thus, the Pruims were personally involved in signing reports that no space was available, while

continuing to accept waste at the landfill. The Board finds that the actions of the Pruims were

not merely those of a corporate officers, but that the Pruims were actively participating in acts

that resulted in the landfill being filled beyond the permitted capacity. Therefore the Board finds

that the Pruims violated Sections 21(a), 21(d)(1) and 21(o)(9) of the Act (415 ILCS 5/21(a),

21(d)(1), and 21(o)(9) (2008)) by allowing the placement of waste in the landfill above the

permitted height of the landfill.

Count XIX (Closure Estimates)

The Board notes that on October 3, 2002, the Board found that CLC violated Section

21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) and Section 807.623(a) of the Board’s landfill

regulations (35 Ill. Adm. Code 807.623) by failing to provide cost estimates. Count XIX alleges

that the Pruims violated Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) and Section

807.623(a) of the Board’s landfill regulation (35 Ill. Adm. Code 807.623(a)) because the Pruims

failed to provide a revised cost estimate. 04Comp. at 48-49. The Board will summarize the

parties’ arguments and then make a finding on this count.

People’s Arguments

The People assert that the Pruims failed to cause the filing of the revised cost estimates

as only they had the authority to file the revised cost estimates. Br. at 29. The People argue that

the Pruims are persons under the Act and they made all of the significant decisions related to

operation of the landfill. Br. at 30. The People maintain that the Pruims decided whether or not

to continue operations and whether and when to comply with pertinent landfill regulations. The

People assert that by failing to direct the filing of annual cost estimates the Pruims violated

Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) and Section 807.623(a) of the Board’s

landfill regulation (35 Ill. Adm. Code 807.623(a)).

Respondents’ Arguments

The respondents did not directly address this issue in the brief other than in charts

concerning each count.

See e.g.

Resp.Br. at 4. In those charts respondents argue for a finding of

no violation against the Pruims.

Board’s Findings on Count XIX as Alleged Against the Pruims

Having found that the Pruims were solely responsible for permitting and that the Pruims

were liable for failure to secure financial assurance, the Board finds that the Pruims are also

liable for the failure to revise cost estimates biennially. Like the permit and financial assurance

requirements, the revision of cost estimates was in the purview of the Pruims and the failure to

do so is a violation Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2008)) and Section

807.623(a) of the Board’s landfill regulation (35 Ill. Adm. Code 807.623(a)).

Conclusion on Pruims’ Violations

The Board declines to apply the “responsible corporate officers doctrine” and instead

reviews the record to determine whether the Pruims had personal involvement or active

participation in acts which lead to the violations.

See

People v. C.J.R. Processing, Inc., 269 Ill.

App. 3d 1013, 647 N.E.2d 1035 (3rd dist. 1995). The Board finds that the Pruims did not have

active participation and were not actively involved in the actions which resulted in the violations

alleged in Counts I, II, III, VI, and XII (daily operations) and the Board therefore dismisses those

counts as alleged against the Pruims. The Board does find personal involvement or active

participation in acts which lead to the violations in Count V (significant modification permit),

Count IV and XVII (financial assurance), Counts VII, VIII, IX and X (overheight), and Count

XIX (closure estimates). Thus, the Board finds that the Pruims violated multiple sections of the

Act and Board regulations as alleged in eight counts.

REMEDY

The following discussion will begin with general comments on penalties in Board cases.

Then, the Board will discuss the factors from Sections 33(c) and 42(h) of the Act (415 ILCS

5/33(c) and 42(h) (2008)) which must be considered when determining the appropriate penalty

before the Board. Finally, the Board will assess the appropriate penalty and explain the Board’s

reasons for the penalty amount.

Having found multiple violations of multiple sections of the Act and Board regulations

against both CLC and the Pruims, the Board must now determine the penalty to be assessed. In

determining the appropriate civil penalty, the Board considers the factors set forth in Sections

33(c) and 42(h) of the Act. People v. ESG Watts, PCB 01-167 (Jan. 8, 2004), People v. Gilmer,

PCB 99-27 (Aug. 24, 2000). The Board must take into account factors outlined in Section 33(c)

of the Act in determining the unreasonableness of the alleged pollution. Wells Manufacturing

Company v. Pollution Control Board, 73 Ill. 2d 226, 383 N.E.2d 148 (1978). The Board is

expressly authorized by statute to consider the factors in Section 42(h) of the Act in determining

an appropriate penalty. In addition, the Board must bear in mind that no formula exists, and all

facts and circumstances must be reviewed. Gilmer PCB 99-27, slip. op. at 8.

The Board has stated that the statutory maximum penalty “is a natural or logical

benchmark from which to begin considering factors in aggravation and mitigation of the penalty

amounts.” ESG Watts, PCB 01-167, slip. op. at 14, citing Gilmer, PCB 99-27, slip. op. at 8,

citing IEPA v. Allen Barry, individually and d/b/a Allen Barry Livestock, PCB 88-71 (May 10,

1990), slip. op. at 72. The basis for calculating the maximum penalty is contained in Section

42(a) and (b) of the Act (415 ILCS 5/42(a) and (b) (2008)). Section 42(a) provides for a civil

penalty not to exceed $50,000 for violating a provision of the Act and an additional civil penalty

not to exceed $10,000 for each day during which the violation continues. By multiplying only

the number of counts the Board has found that respondents violated (25) and not the number of

violations of the Act and Board regulations that the Board has found, a potential civil penalty of

$1,250,000 is reached. If the Board were to add to that sum a civil penalty of $10,000 a day for

each day of noncompliance, the total maximum penalty that could be assessed against

respondents is millions of dollars. However, in this case, the People request an imposition of

civil penalties in the amount of $250,000 to be imposed jointly and severally upon respondents.

Br. at 4, 45. The People also only seek a civil penalty for the violations common to both cases.

Br. at 45. The respondents argue for a penalty assessed against CLC of $25,000 and no penalty

against the Pruims. Resp.Br. at 3, Resp. Br. at 32.

Section 33(c) Factors

Section 33(c) of the Act sets forth five factors the Board examines in determining the

appropriateness of a civil penalty. The Board will set forth the factors and summarize the

arguments of the parties before making a finding on each factor.

The Character and Degree of Injury to, or Interference With the Protection of the Health,

General Welfare and Physical Property of the People (Section 33(c)(i))

People’s Argument.

The People argue that the evidence shows a substantial degree of

injury as the respondents operated a landfill in “flagrant disregard for the welfare of the

surrounding community.” Br. at 45. The People assert that the respondents failed to control

litter, properly control leachate, violated numerous permit conditions, and failed to provide

adequate financial assurance for post-closure care.

Respondents’ Arguments.

The respondents argue that there is no evidence in the record

that shows an injury to the general welfare. Resp.Br. at 33. The respondents further argue that

there is no evidence of any interference with the health or welfare of the general public.

Board’s Finding on Section 33(c)(i).

There is substantial evidence in the record that

CLC violated provisions of the Act and Board regulations which relate to the daily operations of

the landfill. The Board did not find the Pruims to have been in violation of those provisions.

However, the failure to update financial assurance and the failure to timely file significant

modification permits was found against both respondents and those violations alone constitute a

significant degree of interference with the protection of health and general welfare. Significant

modification permits were required because any landfill wanting to remain open was subject to

more stringent requirements for monitoring and other duties. Financial assurance is required to

ensure that a landfill will be maintained after closure. The Board finds that this factor weighs

against respondents.

The Social and Economic Value of the Pollution Source (Section 33(c)(ii))

People’s Argument.

The People concede that a well operated landfill has a social and

economic value during the time that the landfill accepts waste. Br. at 45. The People opine that

a poorly run landfill does not have the same social and economic value.

. The People note that

the landfill does not have a valid operating permit. The People argue that therefore the landfill

does not offer any social or economic value.

Respondents’ Arguments.

The respondents maintain that no evidence was submitted

concerning the social and economic value of the landfill. Resp.Br. at 33.

Board’s Finding on Section 33(c)(ii).

The Board disagrees with respondents in that

substantial evidence was submitted concerning the maintenance of the landfill and a poorly

maintained landfill does not have a social or economic value. For example, leachate seeps were

evidenced at the site and litter control was not maintained. Given the fact that respondents also

have a history of failing to update financial assurance to ensure proper post-closure care, the

Board finds that the evidence does establish that the source of the pollution does not currently

have social and economic value. The Board finds that this factor weighs against the respondents.

The Suitability or Unsuitability of the Pollution Source to the Area in Which it is Located,

Including the Question of Priority of Location in the Area Involved (Section 33(c)(iii))

People’s Argument.

The People assert that the landfill is not suitable to the area where

it located, until closure is undertaken. Br. at 46

Respondents’ Arguments.

The respondents assert that the People did not present

evidence on this issue. Resp.Br. at 33.

Board’s Finding on Section 33(c)(iii).

The Board agrees that the record lacks sufficient

evidence on the location of the site to determine if the location is suitable or unsuitable. The

Board finds that this factor weighs neither for nor against the respondents.

The Technical Practicability and Economic Reasonableness of Reducing or Eliminating the

Emissions, Discharges or Deposits Resulting from Such Pollution Source(Section 33(c)(iv))

People’s Argument.

The People argue that operating a landfill in accordance with the

Act and Board regulations is technically practicable and economically reasonable. Br. at 46.

Respondents’ Arguments.

The respondents concede that operating a landfill in

accordance with the Act and Board regulation is technically practicable and economically

reasonable is generally true. Resp.Br. at 33. However, the respondents assert that this case is the

exception, because the Agency denied CLC’s permit which would have allowed CLC to continue

to operate. Resp.Br. at 33-34. The respondents claim that if CLC had been able to continue

operations, CLC could have generated income necessary and CLC has done “everything it could

for years to attempt to bring the landfill into compliance, in spite of difficulties.” Resp.Br. at 34.

Board’s Finding on Section 33(c)(iv).

The Board is unconvinced that the Agency’s

denial of a permit impacted the technically practicability and economically reasonableness of

compliance. The Board’s landfill regulations were adopted pursuant to the Act, which includes a

requirement that the Board consider the technical practicability and economical reasonableness

of rules before adoption. Furthermore, the denial of a permit should have had no impact on the

daily operations violations observed while the landfill was still operating. The Board finds that

this factor weighs against CLC.

Any Subsequent Compliance (Section 33(c)(v))

People’s Argument.

The People maintain that the landfill is not now in compliance with

the Act and Board regulations. Br. at 46. The People claim that the Board is currently

deliberating on relief in People v. Community Landfill Company, Inc. and City of Morris, PCB

03-191

, which if granted will bring the landfill into compliance.

Respondents’ Arguments.

The respondents assert that the People did not present

evidence on this issue.

Board’s Finding on Section 33(c)(v).

The People suggest an ongoing enforcement

action presents proof that the respondents have not subsequently complied with the Act and

Board regulations. However, the evidence in this record demonstrates that regarding many of

these violations subsequent compliance was achieved. A significant modification permit was

applied for, financial assurance was updated, and many of the daily operations violations were

not present upon re-inspection. The record also contains evidence that the overheight still exists

and has not been addressed. Therefore, the Board finds that this factor weighs neither for nor

against the respondents.

Section 42(h) Factors

Section 42 (h) of the Act (415 ILCS 5/42 2008)) sets forth matters that the Board may

consider in mitigation or aggravation of a civil penalty. Those factors include: 1) duration and

The Board notes that on June 18, 2009, the Board entered an order in People v. Community

Landfill Company, Inc. and City of Morris, PCB 03-191 finding CLC and Morris had violated

the Act and Board regulations. The Board ordered CLC to pay civil penalty of $1,059,534.70 by

August 17, 2009 and Morris to pay civil penalty of $399,308.98 by August 17, 2009. The Board

is currently considering timely filed motions to reconsider by both CLC and Morris.

gravity of the violations, 2) presence or absence of due diligence on the part of the respondents in

attempting to comply with the Act and Board regulations, 3) any economic benefit accrued by

respondents in delaying compliance, 4) the penalty that will serve to deter future violations by

respondents and other similarly situated, 5) previously adjudicated violations, 6) voluntary

disclosure of violations, and 7) any supplemental environmental project respondents may have

agreed to undertake. 415 ILCS 5/42 2008).

People’s Arguments

Duration and Gravity (42(h)(i)).

The People assert that the violations were ongoing

during a period from 1993 through 1999; although the daily operations violations are single day

events. The People argue that for other violations such as the overheight and submission of the

significant modification permit the duration f the violation can be computed as 973 days and

1,178 days respectively. Br. at 47. The People argue that the sheer number of the violations

places a high degree of gravity on the violations and the People opine that “it is hard to find any

area of landfill regulation that was not ignored and/or violated” by respondents. Br. at 47-48.

Due Diligence (42(h)(ii)).

The People argue that none of the respondents demonstrated

due diligence in trying to comply with the Act and Board regulations. Br. at 48. The People

note that the respondents knew of the deadline for submission of a significant modification

permit and waited until completion of a deal with Morris to file the application.

. Further, the

People assert that the financial assurance was not updated until three years after it was required.

. The People maintain that based on the facts of this case respondents “show a complete want

of diligence” in complying with the Act and Board regulations. Br. at 49.

Economic Benefit (42(h)(iii)).

The People point out that evidence submitted establishes

that respondents saved over $1,000,000 by violation the Act. Br. at 49. These savings include

delay in filing the significant modification application and financial assurance updates.

. The

People assert that specifically by filing the permit application late, respondents avoided testing

costs in the amount of $44,526 as well as $950,000 in costs of removing the overheight. Br. at

49-50, Comp.Exh. 1f, 18. Furthermore, the savings on financial assurance, according to the

People, was $47,871.33. Br. at 50, Comp.Exh. 19. The present value of the avoided

expenditures was calculated to be $1,486,079. Br. at 51, Comp.Exh. 19. The People are not

seeking to recover the economic benefit; however, the People believe that the requested joint and

several penalty of $250,000 will recover at least a majority of the avoided costs. Br. at 51. The

People opine that such a fine would recover most of the economic benefit of noncompliance.

Deterrence, Prior Violations, Disclosure, and Environmental Projects (42(h) (iv), (v),

(vi), (vii).

The People believe that the requested penalty of $250,000 applied jointly and

severally against respondents will serve to deter respondents from future violations. Br. at 52.

The People note that there is one prior violation, an administrative citation, adjudicated against

CLC.

. The People also note that the Board has a pending enforcement action People v.

Community Landfill Company, Inc. and City of Morris, PCB 03-191.

. The People maintain

that the respondents did not disclose the violations and has not agreed to a supplemental

environmental project.

Respondents’ Arguments

Duration and Gravity (42(h)(i)).

The respondents agree that the daily operations

violations found by the Board are only provable on the days of inspection. Resp.Br. at 34.

Respondents argue that only a nominal fine should be assessed against CLC for violations

involving the improper disposal of landscape waste and the mixing of waste tires.

. As to

overheight respondents assert “significant testimony” was offered at hearing which mitigates

against the penalty sought by the state such as issues of the extent of the overheight and efforts

made to move waste. Resp.Br. at 34-35. Respondents argue that a penalty for overheight

violations should be assessed against CLC only. Resp.Br. at 36. Respondents also argue that the

People’s mentioning of the “sheer number” of alleged violations as proof of the gravity of the

violations is not enough.

. The respondents argue that the Board should examine the

violations instead by looking at the Section 33(c) factors relating to the character and degree of

injury.

. Respondents argue that the People have provided no evidence of harm to health,

general welfare, and physical property and the Board should consider that when examining the

gravity of the violations.

Due Diligence (42(h)(ii)).

The respondents argue that the evidence in the record does

demonstrate diligence in compliance. Resp.Br. at 36. The respondents point to testimony from

Edward Pruim that as soon as the lease agreement for Parcel A was received, a permit

application was filed, which the Agency rejected.

. CLC sought a variance which ultimately

allowed the filing of the significant modification permit. Resp.Br. at 36-37. The respondents

also note that Edward Pruim testified that CLC was not in good financial shape, but worked on a

constant basis to upgrade the financial assurance. Resp.Br. at 37. And as to the overheight, the

respondents still believe there is capacity in Parcel B, and that Parcel B is not overheight. .Once

informed of the potential overheight, respondents attempted to move the waste.

Economic Benefit (42(h)(iii)).

Respondents take issue with the testimony of the

People’s witnesses concerning the economic benefit accrued by respondents. Resp.Br. at 38.

The respondents note that Ms. Roque testified that the costs she developed were based on

information from CLC about the size of the overheight, which may be incorrect based on a later

study.

. The same is true of the numbers developed by Mr. Styzens regarding the overheight.

. As to Mr. Styzens final numbers, respondents take issue with the tax rate and the interest

rate. Resp.Br. at 39. Finally, respondents argue that the bond rate used by Mr. Harris was

incorrect. Resp.Br. at 39-40. As no harm to the environment resulted from the financial

assurance violations and the evidence that the overheight may be less than the amount used for

calculations, the respondents urge the Board to consider this in deciding that only a nominal

penalty or even no penalty should be applied.

Deterrence, Prior Violations, Disclosure, and Environmental Projects (42(h) (iv), (v),

(vi), (vii).

The respondents believe that a penalty of $25,000 will serve to deter the respondents

from future violations and respondents assert no prior violations have been found against

respondents. Resp.Br. at 41. Respondents argue that CLC reported the potential overheight to

the Agency in the significant modification permit and thus “self-disclosed” the potential

violation. Resp.Br. at 42. Respondents would be willing to undertake a supplemental

environmental project, but none has been proposed. Resp.Br. at 43.

Board’s Finding on Section 42(h)

Duration and Gravity (42(h)(i)).

The Board has found respondents in violation of

numerous sections of the Act and Board regulations as alleged in 25 counts. Many of these

counts are the same alleged violations for both CLC and the Pruims, although the Board found

for the Pruims on several counts dealing with daily operations at the site. With some of the

alleged violations, such as the failure to timely file a significant modification permit, the

violation was ongoing for 1,178 days. This violation was found as to both respondents. The

respondents attempt to shift the blame for the significant modification permit application to the

Agency; however, the respondents ignore the fact that when they filed the application the first

time it was already 22 months late.

See

People v. Community Landfill Company, Inc., PCB 97-

193, (Apr. 5, 2001), citing to Community Landfill Co. v. IPCB and IEPA, No. 3-96-0182 (1996)

(unpublsh. op.) As to the overheight violations (again found against both respondents) the

evidence establishes that the overheight existed in 2000.

See

Resp.Exh. 11. Thus, with these

alleged violations alone the duration of the violations is hundreds of days and this does not take

into account the length of time that financial assurance was not properly in place for the landfill.

As to the gravity of the violations, the Board has carefully reviewed the record in this

case and found evidence of water pollution (as to CLC only). The Board also has found that the

respondents have failed to update financial assurance and biennial cost revisions have not

occurred. Also the failure to timely file a significant modification permit allowed respondents to

operate the landfill using outdated rules for a substantial period of time. The Board has found

that the failure to file a significant modification application is a “substantial violation” and

imposed a fine of $5,000 for that violation alone.

See

People v. ESG Watts, PCB 94-127 (May

4, 1997), slip. op at 17, ESG Watts, Inc. v. IPCB, 282 Ill. App. 3d 43, 50, 668 N.E.2d 1015, 1020

(4th Dist. 1996). Based on the evidence the Board finds that this factor weighs in aggravation of

a penalty.

Due Diligence (42(h)(ii)).

While the Board appreciates that monetary difficulties can be

faced by corporations, the Board is not convinced that monetary difficulties should be used as an

excuse for not complying with the Act and Board regulations. However, the Board finds that the

record does contain evidence of attempts to secure financial assurance by the respondents, which

was ultimately secured although over three years late. The Board also finds that many of the

daily operational violations found against CLC were corrected by the next inspections. Thus,

diligence can be found in the record. Conversely, the overheight issue remains and the

respondents continue to deny what their own records have established. Further, the delay in

filing the significant modification application is explained as being due to a pending lease

agreement; but the record lacks clarity as to why negotiations were not begun sooner. Because

the evidence on due diligence is mixed, the Board will weigh this factor neither for nor against

the respondents.

Economic Benefit (42(h)(iii)).

The Board will agree that the economic benefit numbers

offered by the People on the overheight may be incorrect due to the evidence from the Rapier

study (Resp.Exh. 11) and that the overheight may not be as significant as reported by CLC in the

significant modification permit application. However, there is still some economic benefit from

leaving the overheight in place. Furthermore, the Board finds the benefit accrued for failure to

timely apply for the significant modification permit and the failure to secure timely financial

assurance to be significant. Those raw numbers are $44,526 and $32,074 with a time adjusted

rate of $73,950 and $72,336. So the record establishes that the economic benefit accrued for

these violations alone is over $140,000. The record contains no other specific information

regarding the economic benefit that respondents may have accrued, though clearly additional

benefit was had. Therefore, the Board finds that this factor weighs in aggravation of the penalty.

Deterrence, Prior Violations, Disclosure, and Environmental Projects (42(h) (iv), (v),

(vi), (vii).

The Board agrees that violations not yet adjudicated should not be considered when

weighing this factor. The Board will also concede that the overheight issue may have been self

disclosed in the significant modification permit; although, respondents still continue to deny the

existence of overheight. An environmental project is not at issue here in this case. This leaves

the issue of deterrence. The Board disagrees that a penalty of $25,000 against CLC alone would

deter future violations. That penalty amount is substantially lower than others assessed by the

Board as early as 1997 to landfill operators similarly situated to CLC and those fines did not

deter CLC. Therefore the Board finds that a more substantial fine is appropriate and weighs this

factor against CLC.

Penalty

The Board has carefully reviewed the evidence in this record and the arguments of the

parties. In examining the Section 33(c) and 42(h) factors and applying them to the evidence in

this case, the Board is convinced that a substantial penalty is warranted. Further, the Board finds

that the Section 33(c) factors weigh in favor of ordering the respondents to cease and desist from

further violations of the Act and Board regulations. The Board has previously penalized two

dollars for each dollar gained through noncompliance with the Act and Board regulations.

See

People v. ESG Watts, PCB 01-167 (Jan. 8, 2004), citing ESG Watts v. PCB, 282 Ill. App. 3d 43,

668 N.E.2d 1015 (4th Dist. 1996); People v. ESG Watts, PCB 96-233 (Feb. 5, 1998), People v.

ESG Watts, PCB 96-237 (Feb. 19, 1998). The penalties assessed in those cases ranged from

$60,000 in ESG Watts v. PCB, 282 Ill. App. 3d 43, 668 N.E.2d 1015 (4th Dist. 1996) to

$680,200 in People v. ESG Watts

, PCB 96-233 (Feb. 5, 1998). In People v. ESG Watts, PCB

01-167 (Jan. 8, 2004), the Board assessed a $1,000,000 penalty against ESG Watts. People v.

ESG Watts, PCB 01-167 (Jan. 8, 2004), slip. op. at 1. Many of the alleged violations in these

cases were similar if not identical to the violations found against respondents here (PCB 94-127,

failure to timely file significant modification permit, PCB 01-167, overheight).

The Board will accept the People’s recommendation of a $250,000 fine against the

respondents jointly and severally. This fine reflects the sheer volume of violations of the Act

and Board regulations found, while also taking into consideration some of the attempts to

comply. A $250,000 fine also removes the economic benefit accrued as to some of the

violations. Considering the Board’s findings on the Pruims involvement in the violations which

resulted in the calculated economic benefit, the Board is convinced that they should be equally

liable for the fine. Therefore, the Board imposes a $250,000 fine jointly and severally against

the respondents.

Conclusion on Remedies

The Board finds that the Section 33(c) factors weigh both for and against the respondents.

The Board finds that the character and degree, social and economic value, and technical

practicability and economic reasonableness of compliance weigh against respondents. The

Board finds that the suitability or unsuitability of the source and any subsequent compliance

weigh neither for or against the respondents. The Board finds that the Section 42(h) factors

weigh in aggravation of a penalty or do not impact a penalty. The Board finds that the duration

and gravity, economic benefit and deterrence weigh in aggravation of a penalty. The Board finds

that due diligence, prior violations and disclosure weigh neither in mitigation or aggravation.

Based on the statutory factors and the evidence in the record the Board finds that a civil penalty

of $250,000 will aid in the enforcement of the Act , recoup the economic benefit accrued, and

deter violations. Therefore the Board finds that CLC and the Pruims are jointly and severally

liable for the $250,000 penalty.

CONCLUSION

In ruling on two motions for summary judgment, the Board previously adjudicated CLC

in violation of the Act and Board regulations as alleged in Counts III (landscape waste), IV

(inadequate financial assurance), Count V (failed to timely file significant modification permit),

Counts VII, VIII, IX, and X (daily operations at the site), Count XIII (waste tires), Count XVI

(erosion), Count XIV (temporary fencing), Count XIX (in part financial assurance), and Count

XXI (revised cost estimates).

See

pgs 4-6. The Board finds today that CLC is also in violation

of the Act and Board regulations as alleged in Count I (refuse and litter) (

see

pgs 28-29), Count

II (leachate) (

see

pg 30), Count VI (water pollution) (

see

pg 34), Count XV (gas management

system) (

see

pg 33), Count XVII (improper use of leachate) (

see

pg 34), and Count XIX

(remaining allegations) (

see

pg 32). The Board dismisses Count XX (improper use of leachate).

Thus, the Board has found CLC violate numerous sections of the Act and Board regulations as

alleged in a total of 17 counts.

The Board declines to apply the “responsible corporate officers doctrine” and instead

reviews the record to determine the Pruims had personal involvement or active participation in

acts which lead to the violations.

See

People v. C.J.R. Processing, Inc., 269 Ill. App. 3d 1013,

647 N.E.2d 1035 (3rd dist. 1995). The Board finds that the Pruims did not have active

participation and were not actively involved in the actions which resulted in the violations

alleged in Counts I, II, III, VI, and XII (daily operations) (

see

pg 41)and the Board therefore

dismisses those counts as alleged against the Pruims. The Board does find personal involvement

or active participation in acts which lead to the violations in Count V (significant modification

permit) (

see

pg 42), Count IV and XVII (financial assurance) (

see

pg 43, 44), Counts VII, VIII,

IX and X (overheight) (

see

pg 48), and Count XIX (closure estimates) (

see

pg 48-49). Thus the

Board finds that the Pruims violated multiple sections of the Act and Board regulations as

alleged in eight counts.

The Board finds that the Section 33(c) factors weigh both for and against the respondents.

See

pgs 50-52 The Board finds that the character and degree, social and economic value, and

technical practicability and economic reasonableness of compliance weigh against respondents.

The Board finds that the suitability or unsuitability of the source and any subsequent compliance

weigh neither for or against the respondents. The Board finds that the Section 42(h) factors

weigh in aggravation of a penalty or do not impact a penalty.

See

pgs 52-55. The Board finds

that the duration and gravity, economic benefit and deterrence weigh in aggravation of a penalty.

See

pg 56. The Board finds that due diligence, prior violations and disclosure weigh neither in

mitigation or aggravation. Based on the statutory factors and the evidence in the record the

Board finds that a civil penalty of $250,000 will aid in the enforcement of the Act, recoup the

economic benefit accrued, and deter violations. Therefore the Board finds that CLC and the

Pruims are jointly and severally liable for the $250,000 penalty.

This opinion constitutes the Board's findings of fact and conclusions of law.

ORDER

The Board finds that respondents, Community Landfill Company, Inc. and

Edward and Robert Pruim, have committed the violations as set forth in this

opinion.

Community Landfill Company, Inc. and Edward and Robert Pruim must pay a

civil penalty of two hundred and fifty thousand dollars ($250,000) against

respondent, jointly and severally, no later than September 21, 2009, which is the

first business day following the 30th day after the date of this order. Community

Landfill Company, Inc. and Edward and Robert Pruim must pay the civil penalty

by certified check, money order, or electronic funds transfer, payable to the

Illinois Environmental Protection Trust Fund. The case name, case number, and

Community Landfill Company, Inc. and Edward and Robert Pruim, Social

Security Number or Federal Employer Identification Number must appear on the

face of the certified check or money order.

Community Landfill Company, Inc. and Edward and Robert Pruim must submit

payment of the civil penalty to:

Illinois Environmental Protection Agency

Fiscal Services Division

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2006)) at the rate

set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)

(2006)).

Community Landfill Company, Inc. and Edward and Robert Pruim must cease

and desist from violations of the Act and the Board's regulations.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2008);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board's procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above opinion and order on August 20, 2009, by a vote of 5-0.

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John T. Therriault, Assistant Clerk

Illinois Pollution Control Board