BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS, )
Complainant,
vs.
COMMUNITY LANDFILL COMPANY,
INC.,
Respondent.
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PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
vs.
EDWARD PRUIM and ROBERT PRUIM,
Respondents.
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)
)
)
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PCB No. 97-193
(Enforcement - Land)
(consolidated)
PCB No. 04-207
(Enforcement - Land)
NOTICE OF FILING
TO: Christopher Grant
Jennifer
VanWie
Environmental Bureau
Assistant Attorney General
69
W. Washington, 18th Floor
Chicago, Illinois 60602
cgrant@atg.state.il.us
;vanwie@atg.state.il.us
Bradley Halloran
Hearing
Officer
Illinois Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
hallorab@ipcb.state.il.us
PLEASE TAKE NOTICE that on SEPTEMBER 28, 2009, the undersigned caused to
be electronically filed with Mr. John Therriault,
of the Illinois Pollution Control Board, 100 West
Randolph Street, Suite 11-500, Chicago, Illinois 60601, the RESPONDENTS COMMUNITY
LANDFILL COMPANY, INC.,
ROBERT PRUIM AND EDWARD PRUIM'S
MEMORANDUM IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION OF
THE ILLINOIS POLLUTION CONTROL BOARD'S ODER DATED AUGUST 20, 2009,
a copy
of which is attached and hereby served upon you.
lsi
Clarissa
Y.
Cutler
One
of Respondents' Attorneys
THIS FILING IS SUBMITTED ON RECYCLED PAPER.
Electronic Filing - Received, Clerk's Office, September 28, 2009
Mark A. LaRose
LaRose
&
Bosco, Ltd.
200 N. LaSalle Street, Suite 2810
Chicago IL 6060 I
(312) 642-4414
Atty. No. 37346
Clarissa
Y. Cutler
Attorney at Law
ISS North Michigan Avenue, Suite 375
Chicago IL 6060 I
(312) 729-5067
Atty No. 44745
TillS FILING IS SUBMITTED ON RECYCLED PAPER.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
vs.
EDWARD PRUIM and ROBERT PRUIM,
Respondents.
)
)
)
)
)
)
)
)
------------)
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
vs.
COMMUNITY LANDFILL COMPANY,
INC.,
Respondent.
)
)
)
)
)
)
)
)
)
PCB No. 04-207
(Enforcement - Land)
PCB No. 97-193
(Enforcement - Land)
(consolidated)
RESPONDENTS COMMUNITY LANDFILL CO., INC., ROBERT PRUIM AND
EDWARD PRUIM'S MEMORANDUM IN SUPPORT OF THEIR
MOTION FOR RECONSIDERATION OF THE ILLINOIS POLLUTION CONTROL
BOARD'S ORDER DATED AUGUST 20, 2009
Respondents COMMUNITY LANDFILL CO., INC., ROBERT PRUIM and EDWARD
PRUIM,
by and through their attorneys Mark
A.
LaRose and Clarissa Y. Cutler, pursuant to 35
III.Adm. Code 101.520(a) and 101.902, hereby move the Illinois Pollution Control Board to
reconsider its Order dated August 20,2009, and in support thereof, state
as follows:
I.
INTRODUCTION
Community Landfill Co., Inc. ("CLC"), ROBERT PRUIM and EDWARD PRUIM'S
(collectively "the Pruims"
as to the individual respondents or "Respondents" as to all
respondents) Motion to Reconsider the Illinois Pollution Control Board's Order Dated August
20, 2009 is timely filed pursuant
to 35 III.Adm. Code 101.520(a) which allows a motion for
Electronic Filing - Received, Clerk's Office, September 28, 2009
reconsideration of an order by the Illinois Pollution Control Board ("Board") to be filed 35 days
after receipt of an order. In the present matter, the Order was received via registered mail by
Respondents
on August 24, 2009. This motion is therefore timely filed on September 28, 2009.
II.
LEGAL STANDARDS
CLC and the Pruims move the Board for reconsideration of its Order dated August 20,
2009 to bring the Board's attention to errors
in the Board's application of existing law. 35
Ill.Adm.Code 101.902; Citizens Against Regional Landfill v. County Board of Whiteside
County, PCB 920156, slip.op
at 2 (March 11, 1993, citing Korogluyan v. Chicago Title Trust
Co., 213 Ill.App.3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1991). A motion to reconsider
may specify facts in the record which were overlooked.
CLC and the Pruims move the Board for reconsideration of several rulings contained in
its Order dated August 20, 2009. (See Order dated August 20, 2009, attached
as Exhibit A and
incorporated herein). However, CLC and the Pruims specifically reserve the right to raise on
appeal to the Third District Appellate COUl1 any and all additional issues in the Order dated
August 20, 2009, even
if not contained in the present motion.
l
III
THE BOARD HAS ERRONEOUSLY IMPOSED PERSONAL LIABILITY
AGAINST THE PRINCIPALS OF CLC FOR ACTS PERFORMED
IN THEIR
CAPACITY AS OFFICERS
OF THE CORPORATION
The Illinois Pollution Control Board has erroneously imposed personal liability against
Robert Pruim and Edward Pruim the principals
of Community Landfill Co., Inc. in regard to
several counts
of the State's complaint against the individual respondents. As will be set forth
I
The following citations will be used throughout CLC and the Pruims' Motion for Reconsideration: The lliinois
Pollution Control Board's Order in PCB 97-193/04-207 (Cons.) dated August 20, 2009 will be referred to as either
Exh. A at
_" or "Order dated August 20, 2009 at _"; Exhibits admitted at the Hearing in PCB 97-193/04-207
(Cons.) on Dec. 2-4, 2008 will be referred to as either "Complainant's or Respondents' Exh. _"; Transcripts ITom
the Hearing on Dec. 2-4, 2008 are not sequentially numbered and will be referred to as "Dec. 2, 2008 at _", "Dec.
3,2008 at _"; and "Dec. 4, 2008 at _";Respondents' Post-Hearing Brieffiled on May 4, 2009 will be referred to
as
"Respondents' Brief at
_"; Complainant's Post-Hearing Brief filed on February 6, 2009 will be referred to as
"Complainant's Briefat_"
2
below, the State has failed to provide sufficient evidence for a finding of personal liability under
the correct analysis
of Illinois law. The Board should reconsider its finding of personal liability
against the Pruims for the acts alleged in Counts IV and XVII (financial assurance), V
(significant modification), VII, VIII, IX and X (overheight), and XIX (cost estimate)
as fully set
forth below.
A.
Legal Standards for Personal Liability
In finding no personal liability against the Pruims and therefore dismissing Count I
(refuse and litter), Count
II (leachate flow), Count III (landscape waste), Count VI (water
pollution) and Count XII (used tires) against the Pruims, the Board correctly determined that "the
record contains
no evidence that the Pruims directed the day to day operations of the site" and
therefore did not find "sufficient evidence
of personal involvement or active participation." (See
Order dated August 20, 2009
at 41, attached as Exh. A and incorporated herein.) This same
reasoning should apply to all
of the other counts against the Pruims and on reconsideration the
Board should find
no personal liability for any failure to act by the principals of the corporation
as alleged in Count V (significant modification), COlmts IV and XVII (financial assurance),
Counts VII, VIII, IX and X (overheight) and Count XIX (cost estimate).
In order for the Board
to have properly found that the principals of CLC are personally
liable for the acts alleged
in Counts IV and XVII (financial assurance), V (significant
modification), VII, VIII, IX and X (overheight), and XIX (cost estimate), the State must have
shown at the hearing that the principals had personal involvement or active participation
in the
acts resulting
in liability, not just that they were personally involved or actively participated in
the management
of CLC. People v. Tang, 346 IlI.App. 3d 277, 289, 805 N.E.2d 243, 253-54 (1
st
Dist. 2004).
It
is not enough to prove that either corporate officer was personally involved in or
3
Electronic Filing - Received, Clerk's Office, September 28, 2009
actively participated in the corporation's management.
People v. Petco Petroleum, 363
III.App.3d 613, 623,
841 N.E.2d 1065, 1073 (4
th
Dist. 2006). In order to prove a claim against an
individual under the Act, the State must show the defendant's direct and personal involvement in
the alleged wrongful acts. Tang, 346 III.App.3d at 289.
Furthermore,
it is clear that under
Illinois law, a failure
to act is not sufficient to find personal liability. People v. Petco, 363
III.App.3d at 614.
The two cases decided in Illinois courts after full evidentiary hearings illustrate that the
State has failed
to meet the standards required for the Board to find the principals of CLC
personally liable. In People
v. Petco Petroleum Corooration, 363 III.App.3d 613, 841 N.E. 2d
1065 (4
th
Dis!. 2006) the State did not find the corporate officer to be personally liable. In
contrast,
in People v. Agpro. Inc., 345 III.App.3d 1011,803 N.E.2d 1007 (2
nd
Dist. 2004), the
court did find personal liability.
An
analysis of the court's findings of fact based on the State's
evidence offered in each case undeniably supports the Respondents' position that the Board
should not have found the officers
of CLC to be personally liable for the acts alleged in Count V
(significant modification), Counts IV and XVII (financial assurance), Counts VII, VIII, IX and X
(overheight) and XIX (cost estimate).
In People
v. Petco, the Appellate Court affirmed the trial court's holding that the
president was NOT personally liable. Petco, 363 III.App.3d 613, 623-25. In its unsuccessful
attempt to persuade the Court
to malce a finding of personally liability, the State proffered
evidence that the president acted
as follows:
1)
exercised overall control over the company, including malcing significant
financial decisions;
2)
was involved in many aspects
of the oil production operation, including:
a)
reviewing bids for certain equipment;
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Electronic Filing - Received, Clerk's Office, September 28, 2009
b)
allocating money for special projects, such as upgrading an alarm system,
and
c)
signing checks to compensate landowners whose property was damaged
by Petco' s spills;
3)
received reports on operational matters and occasionally visited the fields;
4)
knew about many
of the spills and leal(s;
5)
told one of his foremen not to report spills;
6)
played an active part in defending Petco against hundreds of administrative
charges; and
7)
failed to implement a policy of spending money on maintenance that would
prevent leaks.
People
v. Petco, 363 Ill.App.3d 613, 624.
In response
to the State's position, respondent Petco contended that the trial court's
finding that defendant was not personally liable should be upheld and cited to the following
evidence
as support:
I)
the president did not exercise day-to-day control
of Pet co's operations, instead he
exercised nothing more than general corporate authority;
2)
the president delegated a "vast amount"
of decision-maldng to Petco's
superintendents and field foremen and gave them authority
to:
a)
mal(e most hiring and firing decisions,
b)
purchase all items used during the normal course
of Petco operations, and
c)
shut down wells and conduct spill-response activities;
3)
Petco employees were not required
to report spill events to the president and
rarely did
so;
4)
on those occasions where the president made decisions on Petco's behalf, such as
whether to drill new wells, he did so only after consulting with Petco's employees
and contractors and relied on their expertise;
5)
the president had no personal involvement or active participation in the 168 spill
events;
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Electronic Filing - Received, Clerk's Office, September 28, 2009
6)
the president explained that
a)
he told one
of his foremen not to report spills after he became upset about
the Department's treatment
of Petco, and
b)
within a short time the president reversed his position and
told Petco
employees to report all spills and cooperate with the Department;
and
(7)
there was no evidence that the president misrepresented anything to the
Department
or knowingly engaged in conduct that resulted in spills.
People
v. Petco, 363 Ill.App.3d 613, 624.
In comparing the conduct
of the president in Petco, and analyzing both what he did and
did not do, with the conduct
of the CLC principals, the Board should find on reconsideration that
the evidence presented by the State does not rise to a level necessary to a finding of personal
liability. Indeed, the evidence presented by the State in the present matter
is far less than even
what was offered in Petco, where the court still found the officer was not personally liable.
In this case:
I)
The day-to-day operation of the landfill was conducted by site operator Jim
Pelnarsh. (Jim Pelnarsh, Dec. 4, 200S, p. 2S; Robert Pruim, Dec. 4, 200S, pp. 39,
52-53)
2)
The government inspectors never dealt with Edward
or Robert Pruim - their on-
site contact was Jim Pelnarsh. (Tina Kovasznay, Dec. 2, 200S, pp. 22, 42, and 43;
Warren Weritz, Dec. 3, 200S, pp. 61, 7S, S3-S4; Mark Retzlaff, PCB 01-170,
Vol.
I,
Oct.
15,2001, pp. 66-69)
3)
The Pruims had no involvement in the day-to-day operations
of CLC - that was
Jim Pelnarsh. (Robert Pruim, Dec. 4, 200S; pp. 39, 52-53; Jim Pelnarsh, Dec. 4,
200S, pp. 27-2S)
4)
There was no directive from Robert or Edward Pruim to
Jim Pelnarsh to place
waste above permitted capacity. (Jim Pelnarsh, Dec. 4, 200S, p. 26; Robert Pruim,
Dec. 4, 200S, p. 62; Edward Pruim, Dec. 4, 200S, p. S2)
5)
The Pruims both denied that they had personal involvement or direct participation
in any
of the allegations at issue. (Robert Pruim, Dec. 4, 200S, pp. 54-63; Edward
Pruim, Dec. 4, 200S, pp. 93-100)
6
6)
Not one of the State's witnesses had any evidence that Edward or Robert Pruim
had personal involvement or active participation in any
of the alleged violations.
(Tina Kovasznay, Dec. 2, 2008, pp. 44, 48, 51, 59, 79-80; Warren Weritz, Dec.
3,
2008, pp. 85, 90-91, 92, 93, 94, 101-102; Christine Roque, Dec. 2, 2008, pp. 79-
80; Ellen Robinson, Dec. 3, 2008, p. 39; Gary Styzens, Dec. 2, 2008, pp. 197-98)
7)
To the extent they signed permit applications and landfill capacity reports it was
as corporate officers and merely a normal part of their corporate officer
responsibility. (Edward Pruim, Dec. 4, 2008, pp. 74, 76,
86)
8)
Ellen Robinson testified that the capacity certification forms have no information
on the height
of the landfill and based on the forms, she could not detennine if
waste was placed at an elevation over the permitted capacity. (Ellen Robinson,
Dec.
3,2008,p. 30)
9)
Contrary to the Sate's claim and the Board's finding - the Pruims were not the
only ones that could shut down the landfill. According to Bob Pruim, the state or
the City
of Morris had that authority. (Robert Pruim, Dec. 4, 2008, p. 67)
10)
Once the Pruims became aware that there was an allegation that Parcel B was
overheight, they immediately stopped filling at Parcel
B, and directed J.P. to
move some waste to Parcel A. (Edward Pruim, Dec. 4, 2008, pp. 81-82; Jim
Pelnarsh, Dec. 4, 2008, pp. 31-32)
II)
Without rehashing all of the evidence that was presented at the hearing, what was
clear was that the State presented absolutely
no evidence to rebut Robert Pruim's
contention that
he disputed the landfill capacity reports at the time that they were
signed, that Vince Madonia advised him that there were mathematical errors that
would
be corrected, and that indeed on the 1997 landfill capacity certification
adjustments were made to show that more than
1.7 million cubic yards of air
space remained
at the landfill. (Comp. Exh. 14(1); Robert Pruim, Dec. 4, 2008, pp.
48-49)
In contrast with People
v. Petco, the Appellate Court in People v. Agpro, Inc., upheld the
trial court's finding
of personal liability against that company's president in regard to water
pollution. 345 Ill.App.3d
lOll, 1028,803 N.E.2d 1007,1019 (2
nd
Dis!. 2004). In affirming the
trial court, the appellate court cited
specific evidence
that Agpro's president had:
1)
personally run Agpro's operations at the site;
2)
spent a great deal of time at the site;
7
Electronic Filing - Received, Clerk's Office, September 28, 2009
3)
directly supervised his employees;
4)
personally applied fertilizer and pesticides to farm fields by operating a "floater";
and
5)
admitted in a conversation with an IEP A inspector that
he
intentionally rinsed out
the "floaters" on the gravel
at the Agpro site.
People
v. Agpro, 345 IlI.App.3d 1011, 1028-29, 803 N.E.2d 1007, 1019 (2
nd
Dist. 2004). The
Court stated that this was exactly the type
of personal involvement or active participation
required
to hold a corporate officer individually liable under the Act. Id.
A comparison of the evidence presented by the trial court and affinned by the appellate
court in People
v. Agpro with that which the State proffered in the present matter shows that the
State has failed
in maldng its case for personal liability against the principals of CLC. The State
did not show that the Pruims were personally involved or actively participated
in the acts
resulting
in liability; all they showed was that they were personally involved in or actively
participated
in the corporation's management. People v. Tang, 346 IlI.App.3d at 289. Under
Illinois law,
it is simply not enough to show that either corporate officer was personally involved
or actively participated in the corporation's management. People
v. Petco, 363 Ill.App. 3d at
623. Furthennore, a corporate officer's failure to act is not sufficient to establish personal
liability.
Id. at 624.
On reconsideration, the Board should reverse its findings of personal liability against
Robert Pruim and Edward Pruim for Count V (significant modification), Counts IV and XVII
(financial assurance), Counts VII, VIII, IX and X (overheight) and XIX (cost estimate). Their
conduct and acts, or a failure to act, on behalf
of CLC in their capacity as corporate officers
simply does not rise to the level required under Illinois law as set forth above.
8
B.
The Board should reconsider its Order and determine that the Pruims are
not personally liable for any acts set forth
in Counts VII, VIII, IX and X
(overheight) related
to any alleged overheight
Counts VII, VIII,
IX
and X (overheight) of both complaints relate to allegations that the
height
of Parcel B of the landfill allegedly exceeds its permitted height of 580 feet above sea
level. The Board found liability against CLC in its Order dated October 3, 2002.
In its Order
dated August 20, 2009, the Board found that Robert Pruim and Edward Pruim were personally
liable for the alleged overheight. (See Exh. A at 48). The Board should reconsider its finding
of
liability against Robert and Edward Pruim since insufficient evidence was presented by the State
to make such a finding.
The sole basis
of the State's personal liability case against Edward and Robert Pruim are
two annual landfill certification reports, one signed by Edward Pruim and one signed by Robert
Pruim. (See Complainant's Trial Exhibits 14(d) and 14(e)). Exhibit 14(d) is a January 1995
annual landfill capacity certification for Parcel B
of Morris Community Landfill. The document
indicates that there was no remaining capacity in Parcel B
as of January 1, 1995 and the
document
is signed by Edward Pruim as secretary of CLC, Robert Feeney as the Mayor of
Morris, and Doug Andrews, environmental engineer. Exhibit 14(e) is a January 1996 landfill
capacity certification which indicates that
as of January 1996, zero remaining capacity in the
landfill existed, yet 540,135 cubic yards
of waste had been deposited in the landfill during the
1995 calendar year. On the basis
of these reports, the State theorized, alleged and claimed that
Edward and Robert Pruim had direct and personal involvement
in filling the landfill above the
580 foot level.
The Board found Edward and Robert Pruim to be personally liable for the alleged
overheight. (See Exh. A at 48). However, the only evidence that the Board points to are those
9
Electronic Filing - Received, Clerk's Office, September 28, 2009
same landfill capacity reports which the Pruims signed in their capacity as corporate officers.
The Board incorrectly determined that " ... the signatures
of the Pruims on the forms and
applications establish that the Pruims are responsible for the alleged violations." (See Exh. A at
4S).
If that were the case, then all landfill forms which are required to be signed by corporate
officers
of owners and operators, would subject the signer to personal liability if the accuracy of
the form is later questioned. Also, under the board's interpretation of "personal liability," Mayor
Feeney and Doug Andrews would
be personally liable. This is not the correct standard for
personal liability. Corporate liability
of CLC is already established. The corporation is
responsible based on the alleged overheight and corporation's knowledge of it. This same
evidence
is being used to establish personal liability of Ed and Bob Pruim, and that is wrong. In
order
to hold a corporate officer personally liable, there must be evidence of direct and personal
involvement separate from
and in addition to tlle evidence that was used to establish any
liability
of the corporation.
The Board does not cite
to any support for its finding that " ... only the Pruims could
decide
to stop accepting waste at the landfill." (See Exh. A at 4S). This factual finding is simply
not true. Bob Pruim testified that the state or the City
of Morris could close the landfill. (Robert
Pruim, Dec.
4, 200S, p.67). Indeed, both the state and city had the landfill capacity certifications
for over
10 years and never acted to close the landfill. That finding is also in direct contradiction
to Site Manager James Pelnarsh's testimony that he " ... made the decision on where, when and
how to place waste on Parcels A and B." (Jim Pelnarsh, Dec. 4, 200S,
p. 27). Pelnarsh also
testified that
no one directed him to place waste above the permitted capacity. (Jim Pelnarsh,
Dec. 4, 200S, p. 26). On that basis alone, tlle Board should reconsider its finding
of personal
liability against the Pruims for Counts VII, VIII, IX and X (overheight).
10
Electronic Filing - Received, Clerk's Office, September 28, 2009
In addition, however, the Board also ignored the following evidence presented by the
Respondents including:
1)
Not one of the State's witnesses had any evidence that Edward or Robert Pruim
had personal involvement or active participation in any
of the alleged violations.
(Tina Kovasznay, Dec. 2, 2008, pp. 44, 48, 51, 59, 79-80; Warren Weritz, Dec. 3,
2008, pp.
85,90-91,92, 93, 94, 101-102; Christine Roque, Dec. 2, 2008, pp. 79-
80; Ellen Robinson, Dec. 3, 2008, p. 39; Gary Styzens, Dec. 2, 2008, pp. 197-98)
2)
The Pruims both denied that they had personal involvement or direct participation
in any
of the allegations at issue. (Robert Pruim, Dec. 4, 2008, pp. 54-63; Edward
Pruim, Dec. 4, 2008, pp. 93-100)
3)
The day-to-day operation of the landfill was conducted by site operator Jim
Pelnarsh. (Jim Pelnarsh, Dec. 4, 2008,
p. 28; Robert Pruim, Dec. 4, 2008, pp. 39,
52-53)
4)
The government inspectors never dealt with Edward or Robert Pruim - their on-
site contact was Jim Pelnarsh. (Tina Kovasznay, Dec. 2, 2008, pp.
22,42, and 43;
Warren Weritz, Dec. 3, 2008, pp. 61, 78, 83-84; Mark Retzlaff, PCB 01-170,
Vol. I, Oct. 15, 2001, pp. 66-69)
5)
The Pruims had no involvement in the day-to-day operations of CLC - that was
Jim Pelnarsh. (Robert Pruim, Dec. 4, 2008; pp. 39, 52-53; Jim Pelnarsh, Dec. 4,
2008, pp. 27-28)
6)
To the extent they signed permit applications and landfill capacity reports it was
as corporate officers and merely a normal part of their corporate officer
responsibility. (Edward Pruim, Dec.
4, 2008, pp. 74, 76, 86)
7)
There was no directive from Robert or Edward Pruim to Jim Pelnarsh to place
waste above permitted capacity. (Jim Pelnarsh, Dec. 4, 2008, p. 26; Robert Pruim,
Dec.
4, 2008, p. 62; Edward Pruim, Dec. 4, 2008, p. 82)
8)
Ellen Robinson testified that the capacity certification forms have no information
on the height
of the landfill and based on the forms, she could not determine if
waste was placed at an elevation over the permitted capacity. (Ellen Robinson,
Dec. 3, 2008,
p. 30)
Furthermore, the Pruims did not even believe that Parcel B was overheight. Without
rehashing all
of the evidence that was presented at the hearing, what was clear was that the State
presented absolutely no evidence to rebut Robert Pruim's contention that he disputed the landfill
11
Electronic Filing - Received, Clerk's Office, September 28, 2009
capacity reports at the time that they were signed, that Vince Madonia advised him that there
were mathematical errors that would be corrected, and that indeed on the 1997 landfill capacity
certification adjustments were made to show that more than
1.7 million cubic yards of air space
remained
at the landfill. (Comp. Exh. 14(£)). The Board must also consider that there has never
been any actual proof submitted that Parcel B
of the landfill is overheight or that there is not any
remaining capacity
at Parcel
B.
Both Robert and Edward Pruim testified that no one has ever
provided them with any empirical proof that any waste was placed above its permitted height.
(Robert
Pruim, Dec. 4, 2008,
p. 68; Edward Pruim, Dec. 4, 2008, p. 80-81). Indeed, Jim
Pelnarsh, Edward Pruim and Robert Pruim testified
as to specific areas on Parcel B where
substantial permitted waste volume still exists. (Robert Pruim, Dec. 4, 2008, pp. 48; Edward
Pruim, Dec.
4, 2008, p. 78-79; Jim Pelnarsh, Dec. 4, 2008, pp. 30-31). Capacity reports upon
which the State rests the entirety
of its case do not talk about permitted elevations or any amount
of waste filled above the permitted elevation. The landfill certification reports, signed by Robert
and Edward Pruim, are not sufficient to establish personal liability
of Robert and Edward Pruim
for Counts VII through X regarding the overheight.
Robert and Edward
Pruim signed landfill Capacity Certificates as corporate
officers. Indeed, those reports are required
to be signed by a corporate officer. If personal
liability can attach
in this case, then every corporate officer or agent who signs a landfill capacity
report subjects him or herself to personal liability
if the accuracy of the report is later questioned.
That
is the sum and substance of their conduct and is not justification for a finding of personal
liability
as it is insufficient based on established Illinois law. The Board should reconsider its
conclusory statement that " ... the Pruims were personally involved in signing reports that
no
space was available while continuing to accept waste at the landfill" as a basis for a finding of
12
personal liability. Of course they were involved as corporate officers with signing reports - that
is what corporate officers do. The reports were signed by them in their corporate capacity after
consultation with their engineers. (Dec. 4, 2008, pp. 47-48 and 76). These
san1e acts were not
enough in Petco to establish personal liability and they are not enough here. In addition, it was
established that Jim Pelnarsh - not the Pruims - was responsible for accepting waste
at the
landfill and that there was
no directive from the Pruims to place waste above permitted capacity.
(Respondents' Brief
at 8-9).
The Board should grant the Respondents' Motion for Reconsideration and detennine that
Robert and Edward Pruim are not personally liable for any allegations related to the alleged
overheight as set forth in Counts VII, VIII, XIX and X (overheight).
C.
The Board should reconsider its Order and determine that the Pruims are
not personally liable for any acts set forth
in Count V related to any alleged
failure
to file required significant modification.
Respondents will not completely re-hash the by now well-known legal standards for a
finding
of personal liability for a corporate officer under Illinois law. All the Board found for
Count
V
was that the Pruims were solely responsible for permits and that they signed the
permits. (Exh. A at 47-48).
Of course they were responsible for permitting (in consultation with
their engineers) and
of course they signed the permits - that's what corporate officers do. That
type
of conduct by a corporate officer was not enough in Petco to establish personal liability and
it is not enough here. In Petco, the court found that the president exercised overall control over
the company including making significant financial decisions - and
it was not enough to
establish personal liability. People v. Petco, 363 I1I.App.3d 613, 624. Analogous to the facts in
this case, the President
in Petco failed to implement a policy of spending money on maintenance
that would prevent leaks. Id. The "failure" in Petco is the same type of "failure" herein - the
13
Electronic Filing - Received, Clerk's Office, September 28, 2009
alleged failure to file a required significant modification.
It
is simply not enough to establish
personal liability against the Pruims. The Board should reconsider its finding of personal
liability against the Pruims for the allegations
in Count V relating to an alleged failure to file a
required significant modification.
In light of the standard for personal liability under Illinois law
as set forth in Petco, a failure to act is clearly not enough.
D.
The Board should reconsider its Order and determine that the Pruims are
not personally liable for any acts set forth
in
Counts IV and XVII related to
any alleged failure to provide
and maintain adequate financial assurance
The allegations against the Pruims in Counts IV and XVII relate to an alleged failure to
provide
and maintain adequate financial assurance. As in Section III-C above, any "failure" to
act in this regard
is simply insufficient under Illinois to find a corporate officer personally liable.
The alleged failure
to provide and maintain adequate financial assurance is the same type of
failure in Petco where the President failed to implement a policy of spending money on
maintenance that would prevent leaks. Petco,
363 IlI.App.3d 613, 624.
It
is simply not the type
of conduct that is recognized by the appellate court to rise to the level necessary against
corporate officers acting in their corporate capacities. The Board should reconsider its finding
of
personal liability against the Pmims for Counts IV and XVII relating to an alleged failure to
provide and maintain adequate financial assurance. In light of the standard for personal liability
under Illinois law
as set forth in Petco, a failure to act in this regard is clearly not enough.
E.
The Board should reconsider its Order and determine that the Pruims are
not personally liable for any acts set forth in Count XIX related to any
alleged failure to provide revised cost estimates.
The allegations against the Pmims in XIX relate to an alleged failure to provide revised
cost estimates.
As in Sections III-C and D above, any "failure" to act in this regard is simply
insufficient under Illinois
to find a corporate officer personally liable. The alleged failure to
14
provide revised cost estimates is the same type of failure in Petco where the President failed to
implement a policy of spending money on maintenance that would prevent leaks. Petco, 363
IlI.App.3d 613, 624.
It
is simply not the type of conduct that is recognized by the appellate court
to rise to the level necessary against corporate officers acting in their corporate capacities. The
Board should reconsider its finding
of personal liability against the Pruims for Count XIX
relating to
an alleged failure to provide revised cost estimates. In light of the standard for
personal liability under Illinois law
as set forth in Petco, a failure to act in this regard is clearly
not enough.
IV.
THE BOARD HAS ERRONEOUSLY IMPOSED LIABILTY ON CLC FOR A
FAILURE
TO CONTROL LEACHATE OR FOR THE EXISTENCE OF WATER
POLLUTION AS ALLEGED IN COUNTS II AND VI
The Board has erroneously imposed liability on CLC for a failure
to prevent or control
leachate and water pollution
as alleged by the State in Counts II and VI. The Board should
reconsider its ruling
as the State did not establish that any alleged material was leachate nor did it
establish the existence
of water pollution.
The definition
of water pollution is:
such alteration of the physical, thermal, chemical, biological or radioactive
properties
of any waters of the State, or such discharge of any contaminant into
any waters
of the State, as will or is likely to create a nuisance or render such
waters harmful or detrimental or injurious to public health, safety or welfare, or
to
domestic, commercial, industrial, agricultural, recreational, or other legitimate
uses, or to livestock, wild animals, birds, fish, or other aquatic life. (415 ILCS
5/3.545)
The State introduced three
(3) inspection reports in its attempt to prove a failure to
prevent or control leachate. Warren Weritz testified specifically that on April 7,1994, he had no
independent evidence that the leachate seeps he saw on that date were not fixed by the end of the
day. (Warren Weritz, Dec. 3, 2008, p. 90). He also testified that it happened that the seeps that he
15
Electronic Filing - Received, Clerk's Office, September 28, 2009
had seen on one occasion would be corrected the next time he came back. (Warren Weritz, Dec.
3,2008,
p. 99). Further, Mr. Weritz testified generally at the inspections on April 7, 1994, March
22, 1995 and May 22, 1995
as follows:
.He never obtained samples
of any material he said was leaving the site. (Warren
Weritz, Dec. 3,2008, pp. 95-96)
.He didn't take any samples or make any test
of the material that he allegedly saw
in the water. (Warren Weritz, Dec.
3, 2008, p. 101)
.He performed
no testing on the alleged leachate he saw on the retention pond
other than his observation. (Warren Weritz, Dec. 3,2008, pp. 96-97)
.He never actually saw "reddish, oily liquid" actually leave the landfill site.
(Warren Weritz, Dec.
3, 2008, p. 97)
•
I-Ie has never seen naturally occurring runoff from iron ore deposits and has no
idea whether they would be red in color. (Warren Weritz, Dec. 3, 2008, pp. 97-98)
• Beyond his observation, he has
no evidence that there were any contaminants in
the water. (Warren Weritz, Dec.
3, 2008, p. 97)
• He did not take any measures
to determine whether the material he saw in the
ditch would
be harmful or detrimental or injurious to the public health and safety,
or
to the domestic, commercial, industrial, agricultural, recreational or legitimate
uses, or to livestock, wild animals, birds, fish or other aquatic life. (Dec. 3, 2008,
p.98)
Conversely, site manager Jim Pelnarsh testified as follows:
.He did not agree with Weritz that leachate was present because leachate
is black
and this liquid was brownish water from strip mines and other excavations. The
landfill across the street and
all the strip mines in the area had brown water. (Jim
Pelnarsh, Dec. 4, 2008, pp. 20-21).
.The excavations where
he saw the water had a slight odor of rotten egg. (Jim
Pelnarsh, Dec. 4, 2008,
p. 21).
In addition, in his affidavit, Jim Pelnarsh stated as follows:
•
He was familiar with the north perimeter ditch at the landfill, having performed
maintenance work including excavating it
to make sure it was clean and free of
sediment. At various times he observed a brownish/reddish staining to the water
in this ditch
as well as other areas around the City of Morris. The stain comes
16
Electronic Filing - Received, Clerk's Office, September 28, 2009
from natural deposits of iron ore present in the soil and not from anything
emanating from or caused
by the landfill. (Affidavit of Jim Pelnarsh,
Respondent's Exh.
9, paragraph 8) .
• N
ot only did he disagree with Mr. Weritz that the reddish/brown stain was
leachate,
he specifically advised Mr. Weritz that it was rusty or orange colored
water from iron ore deposits. (Affidavit
of Jim Pelnarsh, Respondent's Exh. 9,
paragraph 8).
Clearly, the State has failed to establish that CLC should be found liable for a failure to
prevent or control leachate or the existence
of water pollution. The State has not established that
the material allegedly observed actually was leachate or that any alleged leachate seeps were not
fixed by the end
of the day. The Board accepted the State's
opinion
that " ... there can be only
one conclusion that Mr. Weritz correctly identified the leachate entering the waters
of the State".
(See Exh. A
at p. 31). There is simply no basis for this ruling. The State failed to introduce any
evidence
to support the allegations of water pollution as it is defined in the Act. (415) ILCS
5/3.545). The hearing officer found
no issues with the credibility of witnesses. (Dec. 4, 2008, p.
128). In addition to not proving the presence of leachate, no testimony was heard that a nuisance
was or was likely created, nor that the waters
of the State were rendered harmful or detrimental
or injurious to the public health, safety or welfare, or to any other uses such
as commercial or
agricultural, or to any other life forms, including aquatic or other. All
of this is needed for a
finding
of water pollution. In short, the State has utterly failed to prove its case. Therefore, the
Board should reconsider its ruling and determine that there
is no liability for CLC in regard to
Counts II and VI (Enf. 97-193) related to the failure to control leachate or to the existence of
water pollution.
17
V.
THE BOARD'S IMPOSITION OF A GROSS PENALTY AGAINST CLC AND
THE PRUIMS, JOINTLY AND SEVERALLY, IS INAPPROPRIATE AND IS AN
ABUSE
OF DISCRETION.
CLC was found in violation
of 14 counts of the complaint: Count I (refuse and litter),
Count
II (leachate flow), Count III (landscape waste), Count IV (financial assurance), Count V
(significant modification), Count VI (water pollution), Count VII, VIII, IX and X (overheight),
XII (used tires), XV (gas management system), XVII (leachate disposal) and XIX (financial
assurance).
In contrast, the Pruims were only found in violation of seven counts of the complaint,
and those seven are identical to corresponding counts that CLC was found in violation of: Count
IV (financial assurance), Count V (significant modification), Count VII, Count VIII, Count IX,
Count X (overheight), and Count XIX (financial assurance). The Board found Ed and Bob Pruim
not guilty on five counts that CLC was convicted
of: Count I (refuse and litter), Count II
(leachate flow), Count III (landscape waste), Count VI (water pollution) and Count XII (used
tires). Yet, the Board imposed
an across the board $250,000.00 blanket penalty against CLC and
the Pruims jointly and severally. At a minimum - the Board must attribute a portion
of the
$250,000.00
to each of the alleged violations against CLC. Then, the Board must use those
amounts
to reduce the penalties that the Pruims are jointly and severally liable for. For example,
if each of the five counts that the Pruims were not guilty on - Count I (refuse and litter), Count II
(leachate flow), Count III (landscape waste), Count V (water pollution), COlmt XII (used tires) -
carry a penalty
of $10,000.00 each (or $50,000.00 in the aggregate) then the Pruims' penalty
obligation should
be reduced by $50,000.00. Also, common sense dictates that itemizing the
penalties on a per count basis
is required by botl] the Act and the regulations, which the Board
has failed to
do. Itemizing the penalty will allow both the Board and the Appellate Court to do
an amended penalty analysis if either find that a violation was not established and should be
18
reversed. For example, if the Board finds on reconsideration or the Count finds on appeal that
water pollution was not established and should be reversed, itemizing the penalty would allow a
simple reduction
of the penalty on a per count basis.
Furthermore, as the Board
is well aware, the principal reason for authorizing the
imposition
of civil penalties is to provide a method to aid in the enforcement of the Act and
punitive considerations are secondary. City
of East Moline v. Pollution Control Board, 136
Ill.App. 3d 687, 693,
483 N.E. 2d 642, 648 (3,d Dis!. 1985). In the present matter, several counts
for alleged violations that were alleged
to have occurred many years ago were dismissed.
Evidence in mitigation was also presented
by Respondents. Yet, the penalty of $250,000
suggested by the Complainant was adopted by the Board without deducting anything either as a
result
of proven mitigation or dismissal by the Board due to the State having failed to prove its
case.
Any penalty assessed by the Board should be reduced based on the dismissal
of the five
counts against the Pruims,
as well as reduced based on the results of the present Motion to
Reconsider. If this motion is granted, which it should be, the penalty against the Pruims should
be eliminated and the penalty against CLC should be significantly reduced. Again, the
Respondents propose a penalty against CLC
of $25,000.
VI.
CONCLUSION
Based on the foregoing, Respondents CLC and Robert Pruim and Edward Pruim
respectfully request that the Illinois Pollution Control Board GRANT their Motion
to Reconsider
and in
so doing:
1.
dismiss COlmts IV and XIX (financial assurance), V (significant modification),
VII, VIII, IX, X (overheight), and XIX (cost estimate) against Robert Pruim and Edward Pruim
19
Electronic Filing - Received, Clerk's Office, September 28, 2009
in PCB 04-207 with a finding that they are not personally liable for the allegations contained
therein;
2.
dismiss Counts II and VI against CLC in PCB 97-193 with a finding that it did not
fail
to control leachate or cause water pollution; and
3.
revise the penalty assessed to reflect the dismissal of Counts I, II, III, VI, and XII
against the Pruims due
to the State's failure to prove personal liability; and
4.
revise the penalty assessed to reflect the dismissal of all counts against the Pruims
as requested herein (Counts IV, V, VII, VIII, IX, X, XVII and XIX of PCB 04-207) and against
CLC
as requested herein (Counts II and VI in PCB 97-193) and assess a penalty of $25,0000
against CLC.
Mark A. LaRose
LaRose
&
Bosco, Ltd.
200 N. LaSalle Street, Suite 2810
Chicago IL 60601
(312) 642-4414
Atty.
No.3 7346
Clarissa
Y. Cutler
Attorney at Law
155 North Michigan Avenue, Suite 375
Chicago lL 60601
(312) 729-5067
Atty No. 44745
Respectfully submitted,
lsi
Clarissa
Y. Cutler
One
of Respondents' Attorneys
20
ILLINOIS POLLUTION CONTROL BOARD
August 20, 2009
)
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
COMMUNITY LANDFILL COMPANY,
)
INC,
)
)
Respondent. .
)
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
EDWARD PRUIM and ROBERT PRUIM,
)
)
Respondents.
)
PCB 97-193
(Enforcement - Land)
(consolidated)
PCB 04-207
(Enforcement - Land)
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 CLARISSAY. 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 Attomey General, on behalfofthe People of the State of Illinois
(People) filed two separate enforcement actions, which were consolidated by the Boarel
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
ofeLe. CLC operates a permitted landfill, lmown as Morris Community Landfill (the
site or landfill), located
at ISO 1 Ashley Road in Morris, Grundy County. The approximate 119-
EXHIBIT
i
A
2
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 511
e/. seq.
(2008))
I
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
ofthe 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. D'h.e 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
l~achate)
(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 tile 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
pg
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
I
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.
3
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 I, 1997, the People filed an initial six-count complaint alleging that CLC
violated various sections of the Act (415 ILCS 51! el
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 ex.eess waste in Parcel B at elevations above the pennitted 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
o[waste tires violated the Act and Board's regulations. Counts XI through
XXII also include allegations that several pemlit provisions were violated.
On July 31, 2000, the People flied a partial motion [or
summary judgment (coneeming
Counts V and XII) and on October 30,2000, CLC flied a cross-motion for summary judgment.
On April 5,200 I, the Board entered an order granting the People's motion for summary
judgment on Count V, but denying both motions [or summary judgment on Count XII and
directing the pal1ies to hearing on Count XII and the issue o[ penalties for Count V. People v.
Communi tv Landfill Company, Inc., PCB 97-193 (Apr. 5, 2001). On July 26, 2001, the Board
granted a motion to reconsider the AprilS, 2001 order.
In
the order of July 26, 2001, the Board
denied the People's motion [or 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,
200 I).
On October
15,2001, the People flied another partial motion for summary judgment. On
March I, 2002, CLC filed a cross-motion for partial summary judgment. On May 6, 2002, the
People flied 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 [or 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 Ill,
lV, VII,
VIII,
IX, X, XIII, XIV, XVI,
x,\J,
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 detennine the liability of CLC. The Board
dismissed Counts Xl, XVIlI, and XXII
of the second amended complaint.
On December
5, 2003, the People flied 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
Electronic Filing - Received, Clerk's Office, September 28, 2009
4
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, 2006 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
2
alleges that CLC was landfilling landscape waste during
inspections conducted on August 18, 1993 and April
7,1994 in violation of Section 22.22Cc) of
the Act (415 ILCS
5/22.22Cc)
(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 pemlit 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 penllit issuance.
Id.
The complaint further alleges that CLC provided a perfonllance bond on June 20, 1996.
Id.
On October 3, 2002, the Board found that CLC violated Sections 21 (d)(2) and 21.1 of the Act
(415 ILCS
5/2
I (d)(2) and 21.1 (2008)) and 35111. 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 ofthe complaint alleges that CLC failed to file a request for a significant
modification penllit 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 III. Adm. Code
814.104). 97Comp. at 15.
On AprilS, 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, 2002)).
2 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.
5
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 (0 )(9)
(Count VII),
2I(d)(l) (Count VIII and X), and 21(a) (Count IX) of the Act (415 ILCS
5/21(a),
2I(d)(I) and 21(0)(9) (2008)). On October 3, 2002, the Board found that CLC violated Sections
21 (0 )(9) (Count VII), 21 (d)(I) (Count VIII and X), and 21 (a) (Count IX) of the Act (415 ILCS
5/21
(a), 21 (d)( I) and 21 (0)(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-l) of the Act (415 ILCS
5/55(b-l)
(2008)). On October 3,
2002, the Board found that CLC violated Section 55(b-l) of the Act (415 ILCS
5/55(b-l)
(2008)). See
People v. Community Landfill Companv, Inc., PCB 97-193 (Oct. 3, 2002)).
Count XVI
The complaint alleges that CLC violated Section
ll(d)(I)
of the Act (415 ILCS
5/21
(d)( I) (2008)) and special condition number nine of supplemental pennit I 996-240-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 numher 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 i
r
leachate popouts or seeps are present in the areas disturbed
by construction this gas collection facility. 97Comp. at 44.
On October 3, 2002, tbe Board found that CLC violated Section
21(d)(l) of the Act (415 ILCS
5/21
(d)(l) (2008)) and special condition number nine of supplemental permit I 996-240-SP .
See
People v. Community Landfill Company, Inc., PCB 97-193 (Oct. 3, 2002)).
COllnt
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)(I) of the Act (415 ILCS 512I(d)(I) (2008)) and special
condition
13 ofpemlit number I 989-005-SP. On October 3,2002, the Board found that CLC
violated
Section
21 (d)(l) of the Act (415 ILCS 5121 (d)(l) (2008)) and special condition 13 of
pennit number 1989-005-SP.
See
People v. Community Landfill Company. Inc., PCB 97-193
(Oct.
3, 2002)).
Electronic Filing - Received, Clerk's Office, September 28, 2009
6
Count XIX"
The complaint alleges that CLC violated Section 21(d)(l) of the Act (415 ILCS
5/21
(d)(l) (2008)) and special condition number thirteen of supplemental permit I 996-240-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 I, 1999.
97Comp. at 51-52. On October 3, 2002, the Board found that CLC violated Section
21(d)(l) of
the Act (415 ILCS
5/21
(d)( 1) (2008)) and special condition number thirteen of supplemental
pennit I 996-240-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
5121
(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.
fd.
The complaint alleges that CLC did file a cost estimate on July 26,
1996. fd.
On October 3, 2002, the Board found that CLC violated Section 21 (d)(2) of the Act
(415 ILCS
5/2I(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 re[use and litter at
the landfill site in violation
of Sections 21 (d)(2), 21 (0)( 1), (5) and (12) of the Act (415 ILCS
5/21
(d)(2), 21(0)(1), (5) and
(ll)
(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.
fd.
On two occasions the Agency inspector
alleged that there was uncovered re[use from the day before and on two other occasions the
J 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 tbe
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.
,
I
7
inspector maintained that the landfill was accepting waste and there was uncovered refuse,
inclnding 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(0)(2) and (3) of the Act (415 ILCS 5121 (d)(2) and 21(0)(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
dnring 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 talce
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.
[d.
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
5112(a)
and 21(d)(2) (2008)) and
Section 807.313
of the Board's landlill regulations. 97Comp. at 18. The complaint alleges that
these violations occurrcd during an inspection at the landfill on
May 22,1995. 97Comp. at 16.
Specifically, the complaint alleges that CLC allowcd leachate to flow into a ditch on site which
eventually flows into the lllinois 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)(I)
(2008)) and special condition one of permit number 1996-240-SP. 97Comp. at
40. Specifically, the complaint aIleges that special condition one required CLC
to
provide to the
Agcncy specilic infomlation 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)(l) of the Act (415 ILCS
5/21
(d)( I) (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 penn it number
I 996-240-SP provides:
Condensate from the gas accumulations system, and leachate pumped and
removed from the landfill shaIl be disposed at an !EPA permitted publicly owned
treatment works, or a commercial treatment or disposal facility.
The condensate
shall be analyzed to detemline
if hazardous waste characteristics are present. A
written log showing the volume of liquid discharged to the treatment facility each
Electronic Filing - Received, Clerk's Office, September 28, 2009
8
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)(l) (2008)) and special condition number thirteen
of supplemental permit 1 996-240-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 I, 1999.
97Comp. at 51-52.
Count
XX
The complaint alleges that CLC violated Section 21(d)(l) ofthe Act (415 ILCS
5/21
(d)(l) (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
pemlit 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 ofCLC and Edward Pruim is the Secretary. The
allegations in the complaint revolve around the Pruims' management, operation, and ownership
o[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
o[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 Xl. 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.
9
On March 17,2005, the Board granted People's motion to strike an alleged affinnative
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 affimlative
defense
should be stricken as the alleged affimlative defense attacks the sufficiency of the claims and
therefore is not an affinnative 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 1 of the complaint 4alleges that the Pruims failed to adequately manage refuse and
litter at the landfill site
in violation of Section 21(d)(2), 21(0)(1), (5) and (12) of the Act (415
lLCS 5/21 (d)(2), 21(0)(1), (5) and (12) (2008) and Section 807.306
of the Board landfill
regulation s (35
III. 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.
fd.
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), (0)(2) and (3)
of the Act (415 ILCS 5/21 (d)(2), (0)(2) and (0)(3) (2008)) and Section
807.314(e)
of the Board's landfill regulations (35 III. 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
4 The complaint in PCB 04-207 will be cited as "04Comp." throughout this opinion and order.
Electronic Filing - Received, Clerk's Office, September 28, 2009
10
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 land filling 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).ofthe Act (415 ILCS 5/21(d)(2) and
21.1(a) (2008)) and Sections 807.601 (a) and 807.603(b)(I)
of the Board's landfill regulations (35
Ill. Adm. Code 807.601(a) and 807.603(b)(I)). 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 pcr[omlancc 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
ofthc Board's landtlll rules (35 Ill. Adm. Code
814.104). 04Comp. at
15. Specitlcally, the complaint alleges that the Pruims failed to cause
CLC
to file a request for a significant moditlcation pemlit 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 landtlll 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
Electronic Filing - Received, Clerk's Office, September 28, 2009
II
have resulted in violation of Sections 21 (a) (Count IX), 21(0)(9) (Count VII) and 21(d)(I)
(Count VIIl and X) of the Act(415ILCS 5121(a), 21(0)(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-l) of the
Act (415 ILCS
5/55(b-l)
(2008)). 04Comp. at 33. Specifically, the complaint alleges that the
Pruims allowed the mixing
of waste tires with municipal waste.
ld.
Count
XVII
The complaint alleges that the Pruims violated Section 21(d)(I) of the Act and special
condition number 13 ofpemlit 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 0[$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
I,
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 peIlllit issued on April 20, 1993, the Pruims were required to provide a revised cost
estimate to the Agency by December 26, 1994.
ld.
The complaint alleges that Pruims did file a
cost
estimate on July 26,1996.
Id.
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
5
,
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(BL) and on May 18,2009 the
reply
brief (Reply). On May 4, 2009, respondents filed their brief (Resp.BL).
5 The transcripts are not sequentially numbered so they will be cited as
"12/2Tr.",
"12/3Tr.", and
"12/4Tr.".
Electronic Filing - Received, Clerk's Office, September 28, 2009
12
APPEAL OF !-rEARING OFFICER RULING
On December 23,2008, the People filed a motion asking the Board to overrule a hearing
officer decision (HOMoL). 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.
at4-5. The hearing officer ruled that
the People were attacking the veracity
of the Pruims and were offering the exhibit 27 for
impeachment purposes.
Id.
The hearing officer relied on People v. Montgomery, 47 Ill.2d 510
(1971).
!d.
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. HOMoL 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 ease did not establish a ten year rule for use for any other purpose.
HOMoL at
2. The People maintain that exhibit 27 is being offered to substantiate the Pruims
direct involvement and will allow the Board to detemline that the Pruims kept the landfill open
after reaching capacity for personal reasons. HOMol. 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. I-IOResp. at
2.
Board's Ruling
The Board affiffils 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 affiffils 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
13
are in violation of the Act, Board regulations, and pem1it 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 tum. Next the Board
will look at the remaining alleged violations against the Pruims and those too will be discussed in
tum. 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 Companv. Inc. v. City of East St. Louis,
PCB 89-53 at 3, (Apr. 12, 1990); Bachert v. Village ofToledo Illinois. el
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).
cilil1g
Arrington v. Water E. Heller Intemational Corp., 30 Ill. App. 3d 631, 333 N.E.2d 50,58,
(I st Dist. 1975). A proposition is proved by a preponderance of the evidence when it is more
probably true than not. Industrial Salvage at4,
ciling
Estate of Ragen, 79 III. ApI'. 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 ofthe 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. el.
01.,
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 II, 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
1212Tr.
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. l3a, 13b, l3e, 13f, 13i, I3j, 13k, 131,
13m, and 13n.
14
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 inforn1ed 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.
Id.
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.
Id.
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 I,
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;
Id.
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. alc64. Mr.
Weritz took pictures while inspecting the site, which were included with the inspection report
(Comp.Exh. 13b).
Id.
Mr. Pelnarsh Sr. accompanied Mr. Weritz on the inspection and Mr.
Weritz observed the "continuing practice
of land filling landscape waste." 12/3Tr. at 65. Mr.
Weritz also observed litter in the perimeter ditch at the southwest portion of the landfill.
Id.
Mr.
Weritz indicated that Mr. Pelnarsh Sr. "admitted" litter was not being collected at the end
of the
working day.
Id.
Mr. Weritz also observed leachate seeps along the northwest perimeter that did
not
appear to migrate o[fsite. 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.
Id., see also
Comp.Exh. 13a at Pics. II 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
15
leaving the site.
12/3Tr.
at 96-97. Mr. Wentz did not observe naturally occurring runoff at the
site from iron ore deposits and did not Imow what that type
ofliquid might look like. 12/3Tr. at
97-9S.
The inspeetion report indieates that Mr. Pelnarsh Sr. met Mr. Weritz and drove
around
the active area of the landfill. Comp.Exh. l3b at 5. The inspection report is marked indicating
violations of Section 21(0)(12) of the Act (415 ILCS 5/21(0)(12) (200S)) and Section S07.306
(35
III.
Adm. Code S07.306) were observed. Comp.Exh. l3b at 2. The inspection report also is
marked indicating violations of Section 22.22(e) of the Act (415 ILCS
5/22.22(c)
(2008)) and
Seetion S07.314(e) (351\1. Adm. Code S07.314(e)) were observed. Comp.Exh. 13b at 3, 4.
The
nanative indicates that Mr. Pelnarsh Sr. "admitted" that litter was not being collected at the end
orthe day. Comp.Exh. 13b at5.
March 22, 1995 Inspection
Mr. Weritz stated that this investigation was eonducted 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 inspeetion was eonducted with
Jim Pelnarsh Jr. present. 12/3Tr. at 67. !vIr. Wentz
testified that there was no evidence that composted material was being land filled; however other
problems were oceUiTing at the landfill.
12/3Tr.
at 67-68. Mr. Wentz stated that he observed
litter and a leaehate seep llowing into the perimeter ditch.
12/3Tr.
at 6S. Mr. Weritz indicated
that he Imew the liquid was leachate based on observing the flow from the sidewall
of the landfill
and the liquid had a reddish eolor and foul odor.
Jd.
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 Iiller 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 Iiller.
[d.
Comp.Exh. 13e
at Pics.
S, 9, and 10.
Mr. Wentz 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. !vIr. Wentz testified that he had no
independent evidence that the litter observed remained uneovered at the end
of the operating day.
12/3Tr.
at 92. Mr. Weritz had no knowledge as to whether the officers or shareholders ofCLC
had personal involvement in the alleged violations observed during this inspeetion.
Jd.
Mr. Wentz 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
16
The inspection report is marked indicating violations of Section 21 (0)( 12) of the Act (415
ILCS 5/21(0)(12) (2008)) and Section 807.306 (35 III. Adm. Code 807.306) were observed.
Comp.Exh. 13e at
2. The inspeetion report also is marked indicating violations of Section
21 (0)(1) of the Act (415 ILCS 5/21 (0)(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.
Id.
May 22, 1995
Inspection
Mr. Wentz 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
7l. Mr. Weritz observed leachate seeps that resulted in leachate in the perimeter ditch. 12/3Tr.
at 72. Mr.
Wentz stated that the "ditches were running red with a lot of leachate" and the
leachate appeared
to be leaving the site.
Id.
Mr. Wentz kncw the liquid was leachate because of
the appearance, color, and odor.
Id.
Mr. Weritz pointed to photograph 13, as a good depiction of
what he observed. 12/3Tr. at 73, Comp.Exh. 13fat 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. 13fat 7. Mr. Wentz 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.
Wentz concluded that the leachate was migrating into the lliinois River. 12/3Tr. at 74.
Mr. Wentz 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
o[(he operating day. 12/3Tr. at
92-93.
Mr. Weritz had no knowledge as to whether the officers or shareholders ofCLC had
personal involvement in the alleged violations observed during this inspection. 12/3Tr. at 93.
Mr.
Wentz 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 o[.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. a197-98
The inspection report is marked indicating violations of Section 12(a), 21 (0)( 1 ),21 (0)(2),
21(0)(3),21(0)(5),21(0)(12) of the Act (415 ILCS 5/12(a), 21(0)(1), 21(0)(2), 21(0)(3), 21(0)(5),
21 (0)(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.
13fat 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
17
at 5. The narrative indicates that Mr. Pelnarsh Sr. "aclmowledged the presumption that the
leachate was flowing off-site and into a waterway."
Jd.
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. Wentz was accompanied on his inspection by Mr. Joe Rogbe an
equipment operator at the site.
Jd.
Mr. Wentz observed open dumping of refuse and refuse
being disposed of outside the pemlitted boundary of the landfill and that the landfill exceeded the
pennitted elevations.
12/3Tr.
at 76. Mr. Weritz testified that he had been notified by the pennit
section of the Agency that landfill had exceeded the pennitted elevations prior to the inspection.
Jd.
Mr. Weritz stated that Mr. Rogbe infonned 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), (c1)( I), and
21(0)(9)
orthe Act (415 ILCS
5/21(a),
(d)(l), and 21(0)(9) (2008)) were observed. Comp.Exh.
13i at 1-2. In addition the inspection report indicates that there was a failure to obtain a pennit
modification [rom 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 observcd general refuse
waste, tires, and landscape waste being landfilled.
12/3Tr.
at 78. Mr. Wentz also observed
"recontouring"
of Parcel A, removing old waste from one area to another.
[d.
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 Parce! B, Mr. Weritz observed that the gas extraction wells "apparently were
recently
installed."
12/3Tr.
at 80. Mr. Weritz observed erosion along the landtill as a result of
the installation.
[d.
Mr. Weritz inspected the site between 2:35 and 3:40 p.m. and did not retum 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.
Id.
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. Wentz testified that he was not aware of an October 1996 pennit that allowed for
vertical expansion
of Parcel A at the time of the inspections, but was aware of an August 1996
significant modification
pemlit application
by CLC.
12/3Tr.
at 103. Mr. Weritz was not aware
of the pennit status of Parcel A at the time of this inspection
12/3Tr.
at 105.
18
The inspection report is marked indicating that violations of Sections 21 (a), 21 (d)(I),
21(e), 21(0)(5), 21(0)(7), 21(0)(9), 22.22(c), and 55(b)(I) of the Act (415 ILCS 5121 (a), 21(d)(I),
21(e), 21(0)(5), 21(0)(7), 21(0)(9), 22.22(c), and 55(b)(I) (2008)) were observed. Comp.Exh.
J3j at 1-3. The narrative indicates that CLC did not timely file a significant modification penn it
and consequently
at the time of the inspection was operating without a pennit. Comp.Exh. 13j at
9.
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.
Jd.
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 pennit.
Id.
Mr. Weritz observed general construction and demolition debris
being landfilled at the time
of the inspection.
Id.
The inspection report is marked indicating that violations of Sections 21(a), 21(d)(l),
21(e), 21(0)(7), and 21(0)(9) of the Act (415 ILCS
5/21(a),
21(d)(I), 21(e), 21(0)(7), and
21 (0)(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
at9. Parcel A was being
recontoured and waste had been accepted at the landfill.
Jd.
March 31, 1999 Inspection
Ms. Kovasznay testified that she first inspected CLC on March 31, 1999, taking over
from Mr. Wentz. 12/2Tr. at 20-21. Ms. Kovasznay perfornled four inspections before turning
over responsibility for inspections
to Mark Retzlaff in 2000.
Id.
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.
Id.
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 pemlitted 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.
131 at Pic. 7, 8) which depict the site. 1212Tr. 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 pernlitted
to run
the gas collection system at the time
of her inspection.
Jd.
Ms. Kovasznay asked Mr. Pelnarsh
Electronic Filing - Received, Clerk's Office, September 28, 2009
19
Sr. if the system was running and "he stated that it had been operating for the last month."
ld.
Ms. Kovasznay did not believe that the system could have been rulming on the day of inspection
as a test.
ld.
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 si te
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 Imow anything about the alleged violations.
ld.
As to the nllming 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 inspeclion report is marked indicating that violations of Sections 21 (a), 21 (d)( I),
21(d)(2), 21 (e), 21 (0)(7), and 21 (0)(9) of the Act (415 ILCS
5/21
(a), 21(d)(I), 21(d)(2), 21 (e).
2 I (0
)(7),
and 21 (0)(9) (200S)) were observed. Comp.Exh.131 at 1-2. In addition the inspection
report indicates violations
of the Board's landfill rules at Sections 814.10 I (b)(3) and 814.105 (35
III.
Adm. Code 814.10 1 (b )(3) and S14.1 05) and of pemlit conditions were observed.
Comp.Exh.131 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.131 at 7. The narrative report notes that
waste
was being accepted and that blowing litter was observed.
ld.
The narrative report
indicates that Mr. Pelnarsh Sr. stated his helper was oul
of the country and that the leachate was
being collected and used on the clay liners
of new cells.
ld.
May 11, 1999 Inspection
Ms. Kovasznay inspected the landfill on May 11, 1999 with Fred Lebensorger to
detennine if CLC was in compliance with regulations regarding the handling of asbestos.
1212Tr.
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.
ld.
Ms. Kovasznay observed nncovered refuse
on Parcel A and stated that
Mr. Pclnarsh Sr. told her Parcel A was "over high" and still accepting
Electronic Filing - Received, Clerk's Office, September 28, 2009
20
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. I3n. 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."
Id.
Ms. Kovasznay did observe erosion gullies on Parcel A and photo five
depicts those observations.
Id.
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.
ld.
Ms. Kovasznay
took photos six and seven which depict the refuse and lack
of cover. 1212Tr. at 39, Comp.Exh.
13n.
The inspection report
is marked indicating that violations of Sections 21 (a), 21 (d)(l),
21(d)(2), 21 (e), 21 (o)(S), 21 (0)(6),21 (0)(7), and 21(0)(9) of the Act (41S ILCS
S/21(a),
21 (d)(I),
21(d)(2), 21(e). 21(0)(7), and 21(0)(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.IOS
(3S
Ill.
Adm. Code
807.302, 807.30S(a-c), 807.310(b), 807.623, 814.101(b)(3) and 814.IOS) and
of permit
conditions were observed. Comp.Exh. I3n at 4-6. The narrative report notes the operation
of the
gas management system. Comp.Exh.
Un at 7. The narrative report notes that CLC chose to fill
overheight and daily cover has not been placed on the landfill.
lei.
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-S0. Ms. Kovasznay also had only Mr. Pelnarsh Sr. 's
statements regarding the overheight issue as evidence.
12/2Tr.
at S2.
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.
ld.
Ms. Kovasznay prepared a memorandum of her observations from that day.
l2/2Tr.
at 40, Comp.Exh. 130. 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 orthe date of the inspection.
ld.
Forms Filed
by
CLC
Capacity Certification Forms
Ellen Robinson with the Agency testified concerning the annual capacity certification
forn1s filed by CLC.
12/3Tr.
at 4-S. The landfill capacity forms are submitted by landfill
operators and the forms provide the Agency with an idea
of how much capacity remains each
21
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 foml as
of April 19, 1993, was 279,940 cubic yards. 12/3Tr. at 13-14,
Comp.Exh. 14c at2. 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 McDennont 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 [oml
filed by CLC. 12/3Tr. at 17, Cornp.Exh. 14d. The foml covers a period from April 1, 1994, to
December 31, 1994. 12/3Tr. at 18. The amount of capacity remaining on April I, 1994, was
264,290 cubic yards and the amount of waste received by December 31,1994, was 457,000
cubic yards.
Id.,
Comp.Exh. 14d at 3. Ms. Robinson opined that the landlill should be closed
and noted that the foml indicated zero years were remaining.
Jd.
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 lmow by whom
or how the number was calculated. 12/3Tr. at 37-38.
The January 1, 1996 capacity certillcation fornl provided by CLC covered the time period
from January I, 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.
Id.
Ms. Robinson stated that "therc
were zero years remaining, zero capacity, yet they
toolc in wastc." 12/3Tr. at 20. This [oml was
signed
by the mayor of Morris, Robert Pruim signed as president, and 1. Douglas Andrews.
12/3Tr. at 21, Comp.Exh. 14e.
Ms. Robinson conceded that the capacity certitication forms have no information On the
height
of the landfill and based on the fomls, Ms. Robinson cannot detemline 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. 14fat 3. The remaining capacity is listed as 1,774,789 cubic yards and CLC
received 297,988 cubic yards during the plior twelve months. 12/3Tr. at 40-41, Comp.Exh. 14f
at2-3.
22
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 infonnation for each month
is
compiled from daily tickets delivered to Cham lin
&
Associates. 12/2Tr. at 120. Chamlin
&
Associates compile reports and then send a bill
to CLC.
ld.
Morris also keeps the reports
compiled by Chamlin
&
Associates. 12/2Tr.
at 121. The reports were admitted into the record.
ld.,
Camp. Exh. 26.
Permit Applications
Christina Roque reviews pennit applications for the Agency and has been doing so since
1992. 12/2Tr.
at 62. Ms. Roque is the pennit engineer assigned to work with the site. 12/2Tr. at
62-63. Ms. Roque testified concerning the January
~,
1989 pennit application filed for the site.
ld.
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. la at 8_9
6
On a site sketch the final elevation is specified as 580 feet above sea level. 12/2Tr. at 67,
Comp.Exh. I a at 21.
On June 5, 1989, the Agency issued the pennit in response to the January 5, 1989
application. 12/2Tr. at 67, Comp.Exh. 2a. The pennit was sent
to Morris and CLC, whose
address
was in Crestwood.
ld.
Ms. Roque testified that the pennit incorporated the 580 foot
height limit. 12/2Tr. at 68, Comp.Exh. 2a at I.
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. I c. The biennial
review
was also signed by the mayor of Morris. Comp.Exh. I cat 2. A pennit 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 penn it. 12/2Tr. at 69, Comp.Exh. 2b at 2. This peI1l1it was also mailed to
CLC at the Crestwood address.
ld.
On August 5, 1996, an application for significant modification peI1l1it for Parcel B was
filed. 1212Tr. at 69, Comp.Exh. Ie. The application was signed by the mayor
of Morris, Robert
Pruim, president and
R. Michael MeDennont of Andrews. 12/2Tr. at 70, Comp.Exh. I eat 2.
The
August 5, 1996 application includes a diagram of the landfill that includes a height of 580
feet.
lei.
On April 30, 1997, CLC filed an addendum to the August 5,1996 application. 12/2Tr. at
70, Comp.Exh. I
f.
The addendum includes infonnation that tbe landfill is overheight by a total
of 475,00 cubic yards. 1212Tr. at 71, Comp.Exh. I fat 17. The cost estimate for removal of the
overheight
is $950,000.
ld.
Ms. Roque testified that CLC was to file an application to modify
6 As the pages are not numbered sequentially in exhibits I a, I c, I e, and
If,
all page numbers
were derived by counting the pages starting with the first
as number one.
23
the final grade of Parcel B, after the waste was relocated. 1212Tr. 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.
[d.
On October 24, 1996, the Agency granted a supplemental pernlit to CLC which included
requirements for financial assurance. 1212Tr. at 72, Comp.Exh. 2c. The cost estimate for
closure and post-closure care was $1,431,360 and the operator was required
to provide financial
assurance within
90 days
of the permit issuance.
12/2Tr.
at 72, Comp.Exh. 2c at 3. In addition,
the pennit required financial assurance in the amount of$I,439,720 be posted prior to operation
of the gas extraction system.
Jd.
Ms. Roque testified that she had never seen a document signed by Robert or Edward
PnIim 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 deternline the overheight,
probably after
2000.
12/2Tr.
at 81-82. Thc 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. 1212Tr. at 83,
Resp.Exh.
II.
Calculation of Economic Benent
Ms. Roque prepared a document that represents the Agency's estimate of cost savings
from a delayed application for a significant modification penni!.
12/2Tr.
at 73-74, Comp.Exh. 8.
Ms. Roque used the cost estimates from a pemlit application filed in 2000, and calculated a cost
of delayed application, considering the variance received by CLC for the significant modification
pennit, 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.
Jd.
Ms. Roque calculated the cost based on the
more stringent new regulations that a facility must follow aftcr the issuance
of a significant
. modification pernlit.
12/2Tr.
at 75. Speci fically, Ms. Roque looked at the monitoring
requirements and the fi'equency
of monitoring not required under the old niles 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.
1212Tr. 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 infomlation used to
calculate the cost savings.
Jd.
Mr. Harris stated that the savings were calculated by taking the
amount
of financial assurance required in the pernlit 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.
Electronic Filing - Received, Clerk's Office, September 28, 2009
24
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). 1212Tr. 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.
Id.
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.
Id.
Mr. Styzens indicated that the
analysis
is attempting to identify the financial advantage
in
order to level the financial playing
field.
[d.
Mr. Styzens begins his analysis by gathering information "geared toward identifying
delayed
or avoided expenditures relating" to the noncompliance. 1212Tr. 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.
Id.
Mr.
Styzens reviews the documents and makes some assumptions as to whether the estimates are
accurate for the delayed or avoided expenditures.
Id.
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. 1212Tr. at 141-42.
Mr. Styzens perfornled an economic benefit analysis for this case at the request
of the
Agency's chieflegal 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).
!d.
Mr. Styzens detailed three types of avoided costs, "Avoidance
in
Removal of Excess laver height
Waste," "Avoidance
of Post-Closure Costs - Significant Mod Application," and "Avoidance of
Financial Assurance Upgrade Costs."
12/2Tr.
at 146, Comp.Exh. 17 at I. The avoided costs
information was provided by the Attorney General's Office and these figures were the starting
point for estimating the economic benefit. 1212Tr. at 146.
On the issue
of over height, Mr. Styzens used information from Andrews
in
1997 that
indicated the cost
of removal of some of the overheight waste would be $950,000.
1212Tr.
at
147. Mr. Styzens used that figure
to analyze the financial impact of avoiding that cost.
Id,
Comp.Exh. 17 at excel spread sheet I. Mr. Styzens examined the non-compliance period.
Id.
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 I.
The interest rate used was the bank prime loan rate.
Id.
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 I.
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
Electronic Filing - Received, Clerk's Office, September 28, 2009
25
be $44,526.
lei.
Mr. Styzens perfomled 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 Attollley
General's Office.
12/2Tr.
at 157. The avoided costs were established as $32,074.
ld.
Comp.Exh. 17 at excel spread sheet 3. Mr. Styzens perfomled the same analysis, and found an
economic benefit
of $72,336.
ld.
The resulting total economic benefit calculated by Mr. Styzens
is $1,486,079.
12/2Tr.
at 158.
Testimonv
of
James Pelnarsh S ... 1
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 II. 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.
lei.
NIr. Pelnarsh indicated that Andrews was the engineering fiml through the 1990s for
CLC, but Mr. Pelnarsh did not hire Andrews and does not know who did.
12/4Tr.
at IS. Mr.
Pelnarsh is not familiar with the pemlits for the landfill and copies of the pennits were not kept
at the site.
12/4Tr.
at 16. NIr. Pelnarsh has no responsibility for permitting.
lei.
NIr. 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.
NIr. 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.
ld.
NIr. 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 NIr. Weritz's
characterization ofthe liquid as leachate.
ld.
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.
ld.
NIr.
Pehlarsh did not take samples
of the water and has llOt tested the iron cOlltent.
12/4Tr.
at 21-22.
NIr.
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. Pe1narsh stated in his deposition that he believed that engine was being
7 James Pelnarsh Sr. is referred to as both Mr. Pelnarsh Sr and Mr. Pelnarsh.
Electronic Filing - Received, Clerk's Office, September 28, 2009
26
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 fonns
to the Agency and the
overheight was not his responsibility.
!d.
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.
[d.
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.
[d.
Mr. Pelnarsh is the operator and he has made thc dccisions on the
day-to-day operations
of the landfill.
12/4Tr.
at 28. Mr. Pelnarsh had on occasion made a
decision
to closc the landfill.
Jd.
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.
[d.
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.
at36-37. 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.
Jd.
Robert Pruim
believes thaI 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.
27
CLC did not put in the gas collection system and did not get royalties on the systern.
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 colleetion system operator and not
CLC.
12/4Tr.
at 51-52. Robert Pruim understood that the operator would pay for the increased
finaneial assuranee.
12/4Tr.
at 52.
Testimonv of Edward Pruim
Edward Pruim is the seeretary/treasurer and one of two shareholders in CLC.
12/4
Tr. at
70-71. Edward Pruim personally guaranteed royalties to Morris between 1990 and 2000
and
personally guaranteed banle 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 ofCLC,
including landfill capacity ceriification fonns.
12/4Tr.
at 74, Comp.Exh. 14d and 14e. Edward
Pruim concedes that the landfill capacity certification fOIm states that there is no remaining
disposal capacity.
[d.
Edward Pruim stated that there is financial assurance in the fonn 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 [acts relating
to the counts, thus the counts are not discussed chronologically.
Electronic Filing - Received, Clerk's Office, September 28, 2009
t •
2S
Count
I,
II,
and VI (Daily Management of the Site)
Counts
I, II and VI, along with previously adjudicated violations o[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, 3S. 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 o[Sections 21(d)(2), 21(0)(1), (5) and (12) of
the Act (415 ILCS
5/21
(d)(2), 21 (0)(1), (5) and (12) (200S)) and 35
Ill.
Adm. Code S07.306.
97Comp. at 4.
People's Arguments. The People argue that these violations occLlrred during inspections
made by the Agency between 1994 and 1999. Br. at 32. Specifically, the People point to
testimony
ofMr. Wentz 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.
lei.
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
111 r. Pelnarsh's testimony is based on his recollections and he did not prepare reports of the
inspections.
!d.
The People argue that Mr. Wentz's testimony supported by the inspection
report should
be "considered far more credible" than the recollections ofMr. Pelnarsh about a
conversation eight years prior.
lei.
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(0)(1) ofthe Act (415
ILCS
5/21
(0)(1) (2008)). Br. at 33-34. Further, the People argue that the record supports a
finding that refuse from a previoLls operating day remained uncovered
in violation of Section
21(0)(5)
orthe Act (415 ILCS
5/21(0)(5)
(200S)) and Section S07.306 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 returu 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
dunng inspections show attempts
to control litter.
lei.
Finally, respondents argue that the inspectors had no independent evidence
that the uncovered refuse was from the prior operating day.
lei.
Tn 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 practicc was to pick up litter at the end of the
Electronic Filing - Received, Clerk's Office, September 28, 2009
29
day. Resp.Br. at 26. Respondents argue that Mr. Pelnarsh testified that there were
employees
whose job was to pick up litter.
Jd.
The respondents opine that the State has failed to establish
that CLC failed to adequately manage litter and refuse.
Jd.
Board Finding. The Board must deternline 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(0)(5) and (12) of the Act
(415 ILCS
5/21
(0)( 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 hcaring 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. FurthemlOre,
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 (0)(1), (5) and (12) of the Act
(415
TLCS
5/2I(d)(2),
21(0)(1), (5) and (12) (2008)) and 35111. 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(0)(2) and (3)
of the Act (415 ILCS 512I(d)(2) and 21(0)(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 TI of the complaint. Br. at34. 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.
Jd.
The People assert that the respondents "make much
orthe fact that no samples" of the leachatc were taken; however, the respondents do not propose
what test should be perfonned.
Jd.
The People note that respondents assert that the red color is
due to iron deposits, but no evidence was presented to support this claim.
Jd.
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 (0)(2) ofthe Act (415 ILCS
5/21
(0 )(2) (2008) and Section 807 .314( e) of the Board's rules (35 Ill. Adm. Code 807 .314( ell. .
30
Finally, the People maintain that by violating Section 807.314(e), a violation of Section 21 (d)(2)
of the Act (415 ILCS
5121(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.
Id.
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(0)(2) of the Act (4151LCS
5/21(d)(2)
and 21(0)(2)
(2008) and Section 807.3 14(
e) of the Board's rules (35 Ill. Adm. Code 807 .3l4( 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.
Id.
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(0)(2)).
"Waters" are defined in the Act as "all accumulations of water" including artificial
and private in the State. 415 1LCS
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 (0)(2) of the Act
(415 lLCS
5/21
(0)(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 (0)(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(0)(3) of
the Act (415 ILCS
5/21(0)(3) (2008)).
31
Count VI (Water Pollution)
In
Count VI the complaint alleges that that CLC caused or allowed water pollution in
violation
of Section 12(a) ofthe 21(d)(2) of the Act (4151LCS
5112(a)
and 21(d)(2) (2008)) and
Section S07.313
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 [Jow 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.
fd.
The
People opine that there can be Dnly one conclusion that Mr. Weritz correctly identified the
leachate entering the waters
of the State.
fd.
The People note that Section 12(a) of the Act (415 ILCS 511 2(a) (200S)) prohibits
causing, threatening or allowing water pollution while Section 807.313 (35 Ill. Adm.
Code
S07.313) prohibits operating a landfill in a manner to cause, threaten or allow water pollution.
Br.
at27. Furthemlore, the People note that Section 21(d)(2) oIthe Act (415 ILCS
5/21
(d)(2)
(2008)) prohibits conducting waste disposal
in a manner that violates Board regulations.
fd.
Therefore, the People argue that the Board should find for the People on Count VI. Br. at 37-3S.
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 26-2S.
The respondents rely on the definition of water pollution at
Section 3.545
of the Act (415 ILCS
5/3.545
(200S)) 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 hamlful, detrimental or injurious to the public health
safety
and welfare by discharge of the liquid. Resp.Br. at 2S. The respondents assert that those
factors are prerequisites to a finding
of water pollution.
fd.
The respondents argue that the
Board should rule for
CLC on this count.
fd.
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 Peoplc
have failed to
prove a violation of Section 12(a) of the Act (4151LCS 5112(a) (200S)). The
Electronic Filing - Received, Clerk's Office, September 28, 2009
"
32
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 (41S ILCS SIl2(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)(l) of the Act (41S ILCS
S/21(d)(l) (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 Pcople argue that the facts establish that CLC failed to increase the financial
assurance prior
to begilming the operation of the gas management system. Br. at 24. Tn support
of this argument the People note that Ms. Kovasznay inspected the site on March 3 I, 1999, and
the gas extraction system was running.
Jd.
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.
[d.,
12/2Tr. at 21,27. The People further note that Ms. Kovasznay noted
the infoffilation concerning the gas management system in her inspection report.
Jd.,
Comp.Exh.
13i at 7.
Tn
contrast, the People point out timt Mr. Pelnarsh's denials are based only on his
recollections and
no reports were made by Mr. Pelnarsh of the inspections. Br. at
24-2S.
The
People argue that the Board should find Mr. Pelnarsh's testimony and affidavits are not accurate.
Br.
at
2S.
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)(I) of the Act(4IS ILCS SI2I(d)(J) (2008). Br. at
2S.
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 sale evidence presented by the People is that on March 31, 1999, Ms.
Kovasznay observed the gas collection system in operation.
Jd.
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.
Jd.
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.
Jd.
33
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 ofMr. Pelnarsh. Ms. Kovasznay testified
that she heard the engines running for the system and was infoffi1ed
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. 131. 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 peffi1it to run the system both at the last inspection and on the phone.
See
Comp.Exh. 13n. Therefore,Jhe Board finds that the gas management system was operating on
or before March 31, 1999, and as a result CLC violated peffi1it conditions and Section 21(d)(l) of
the Act (415 ILCS 5/21(d)(l) (2008)).
Count
xv
(Gas Collection System Permit Condition)
Count XV alleges that CLC violated Section 21(d)(l) of the Act (415 ILCS 5/21(d)(I)
(2008)) and special condition one ofpeffi1it number 1996-240-SP. 97Comp. at 40. Specifically,
the complaint alleges that special condition one required CLC to provide to the Agency specific
infoffi1ation 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 infoffi1ation
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)(l) of the Act (415 ILCS 5/21 (d)(l) (2008)) and special condition one of peffi1it number
1 996-240-SP.
Id.
Respondents' Argnments
The Respondents agree that this issue is similar to Count
XD(
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. Kovaszoay that she observed the
system
running and heard the engines.
Id.
The respondents maintain that Mr. Pelnarsh's
testimony refutes the observations of Ms. Kovasznay in that he stated the system was being
34
tested.
[d.
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.
Id.
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)(I)
of the Act (415 ILCS
5/21(d)(I)
(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)(l) of the Act (415 ILCS
5/21
(d)(l)
(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
pennitled facility. 97Comp. at 47. The Board will summarize the arguments
orthe 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.
[d.
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.
131,
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 rcspondents maintain the Mr. Pelnarsh's testimony contradicts the testimony
of Ms.
Kovasznay.
Jd.
The respondents assert that Mr. Pelnarsh's testimony is credible and the People
havc 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
Electronic Filing - Received, Clerk's Office, September 28, 2009
35
statements by Mr. Pelnarsh.
See
Comp.Exh. 131 and 13n. Mr. Pclnarsh states in his affidavit
that he informed Ms. Kovasznay that he was using storm water from the retention pond to wet the
clay. Resp.Exh. 9 at
2. Mr. Pclnarsh 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."
Id.
The Board finds that Mr. Pelnarsh's own statements support a finding of violation. Mr.
Pelnarsh's statement indicates that the liquid he used, cven
if stormwater, may have contained
leachate. Therefore, pursuant to the pennit conditions, the liquid should have been treated. The
Board finds that the evidencc supports a finding that CLC violated Section 21(d)(I) of the Act
(415 ILCS 5121(d)(1) (2008)) and special condition number eleven of supplemental permit 1996-
240-SP.
Count X:X
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 1II (landscape waste), IV
(inadequate financial assurance), Count V (failed to timely file significant modification pennit),
Counts VII, VIII, IX, and X (daily operations at the site), Count XIII (waste tires), Count XVI
(erosion), Count XlV (temporary fencing), Count XIX (in part financial assurance), and Count
XX! (revised cost estimates). The Board finds today that CLC is also in violation of the Act and
Board regulations
as alleged in Count! (refuse and litter), Count II (leachate), Count VI (water
pollution), Count XV (gas management systcm), Count XVII (improper use of leachate), and
Count
XIX (remaining allcgations). 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 1 7 counts.
PRUIlVIS'
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 solc sharcholders ofCLe. The Board
will not malee 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 tbe 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
36
identical violations against the Pruims
as aJleged against CLC.
Jd.
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
tum.
Pel'sonal 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 (lst Dist. 2004). Br. at 5-6. In Agpro, the
People
note that the court affinned 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.
ld.
The People argue that in both C.l.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.
Jd.
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."
ld.
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. Dotterweieh, 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 Corn. 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 oflvlinnesota v.
Modem 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
37
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.
ld.
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.
[d.
The People note that the Pruims also provided personal guarantees for financial
assurance and one
of them signed all pennit applications and reports. Br. at 9-10.
Respondents' Arguments
The respondents' argue that the evidcnce 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.
[d.
The
respondents concede that the Pruims managed some corporate issues from an office 60 miles
away from the landfill; however, thc respondents assert that the Pruims were not involved in the
day-to-day opcrations and had no involvement
in the acts giving rise to the violations.
ld
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.
ld.,
People v. Petco Petroleum, 363 111. App. 3d 613,623, 841 N.E.2d 1065, 1073 (4th Dis!.
2006).
The respondents argue that two cases have bcen 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.
ld.
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.
ld.
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
oftbe 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.
ld.
38
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.
Bf. at 13. FurthemlOre, the respondents assert that Lundgren relies on U.S. v.
Gulf Park Water
Co., Inc. 972 F.Supp 1056 (SD.Miss. 1997) where liahility was found when the officer exercised
hand on control
of the facility.
ld.
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.
ld.
People's Replv
The People argue that the Board should apply the responsible corporate officers cioctrine
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, pemlits, arrangements with
the
landfill owner, and the Pruims controlled the amount of material disposed.
Id.
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.
Id.
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 S. The People assert that
allowing the Pruims "to escape liability because
of the concurrent ex istence of a corporation that
they controlled" would defeat the purposes
of the Act.
]d.
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. Thc Illinois courts have
consistently held that liability
under the Act for a corporate officer requircs personal involvement
or active participation in violation of the Act. C.J.R. Processing, 269 111. App. 3d at lOIS, 647
N.E.2d 1038; Tang, 346
III. App. 3d 2S9, S05 N.E.2d 254-5. The Pcople have presented no
persuasive authority or controlling authority which alters that well-settled holding. Furthemlore,
the Board notes that in responding to a motion to dismiss, the
Peoplc 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
(Dailv Management of the Site)
Counts
I, Il,
III,
VI and XII all involve the daily operations orthe landfill including the
management of refuse and litter at the site and leachate.
See
04Comp. at 7, 8-9, II, IS, 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.
39
People's Arguments on Count
I
In Count I, the complaint alleges violations of Sections 21 (d)(2), 21 (0)(1), (5) and (12) 0
f
the Act (4151LCS
5/21
(d)(2), 21(0)(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 oflitter present in the
water in the perimeter ditches and uncovered waste from the previous operating day.
Jd.
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.
Jd.
The People argue that Mr. Weritz's testimony supported by the inspection
report should be "considered far more credible" than the recollections
ofMr. Pelnarsh about a
conversation eight years prior.
Id.
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(0)(1) of the Act (415
TLCS 5/21(0)(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 (0)(5) of the Act( 415 TLCS
5/21
(0 )(5) (2008)) and Section 807.306 of the Board's rules (35
lll. 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.
Jd.
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.
Id.
The People note that respondents assert that the red color is due to iron
deposits, but no evidence was presented
to support this claim.
Id.
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(0)(2) ofthe Act (4151LCS
5/21(0)(2.)
(2008) and Section 807.314(e) of the Board's rules (35 Ill. Adm. Code 807.314(e)) ..
Electronic Filing - Received, Clerk's Office, September 28, 2009
40
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. atl8. 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
ditchcs and the rctention 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.
Id.
The
People opine that there can be only one conclusion: that Mr. Weritz correctly identified the
leachate entering the waters
of the State.
Id.
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 S07.313 (35 111. Adm. Code
807.313) prohibits operating a landfill
in a manner to cause, threaten or allow water pollution.
Sr. at
2. 7. Furthermore, the People note that Section 2.1 (d)(2) of the Act (415 ILCS 5/21 (d)(2)
(200S)) prohibits conducting waste disposal
in a manner that violates Board regulations.
Id.
Therefore, the People argue that the Board should find for the People on Count VI. Br. at 37-3S.
People's Arguments on Count
III
(Landscape Waste)
The People note that on October 3,2002, the Board found that CLC had violated Section
n.n(c)
of the Act (415 ILCS 5/22.22(c) (2008)) by failing to properly dispose of landscape
waste. Br. at 3S. The People allege that the Pruims also violated Section
n.2.2(c)
of the Act
(415 ILCS
5122.22(
c) (2008)) by failing to properly dispose of landscape waste. 04Comp. at 11;
Br. at 3S.
The People note that Section 22.22(c) of the Act (415 ILCS
5122.22(c) (2008))
prohibits owners and operators oflandfills from accepting or disposing of mixed
landscape/municipal waste.
!d.
The People assert that because of the overall authority and
involvement in the management
of the landfill the Pruims should be considered operators.
Id.
The People ask the Board to apply the principles of the responsible corporate officer doctrine and
find for the People on Count III.
Id.
Electronic Filing - Received, Clerk's Office, September 28, 2009
41
People's Argumeuts on Couut XII (Disposal of Used Tires)
The People note that on October 3, 2002, the Board found that CLC had violated Section
55(b-l) of the Act (415 ILCS 5/55(b-l) (2008)) by failing to properly dispose of used tires. Br.
at 38. The People allege that the Pruims also violated Section
55(b-l) of the Act (415 ILCS
5/55(b-l) (2008)) by failing to properly dispose of used tires. 04Comp. at 33; Br. at 38-39. The
People note that Section 55(b-l) of the Act (415 ILCS
5/55(b-l)
(2008)) prohibits persons from
accepting or disposing
of used tires mixed with other waste.
ld.
The People assert that because
of the overall authority and involvement in the management of the landfill the Pruims should be
considered operators.
fd.
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.
Id., 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, Ill, VI, and XII. Resp.Br. at 30.
Board's Findings on Counts
1,11, 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,
11,
!II,
VI and XII.
Count V (Significant lVIodit1cation 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 ofthe Board's landfill
mles (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
Electronic Filing - Received, Clerk's Office, September 28, 2009
42
5/21(d)(2)
(2008)) and Section 814.104 oftbe 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 pennit 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 pennit application was not filed until August
5,1996. Br. at 26-27. The People
maintain that the Pruims were the sale 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 pennit applications and the Pruims
had arranged for and signed the previous applications for pennits.
lei.,
Comp.Exh. I a, Ie.
Furthennore, the People argue that Edward Pruim admitted he was involved
in the filing of the
significant modification pennit.
Id., 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 pennit. Br.
at 27-28.
Specifically, the People assert that the Pruims wanted to expand the landfill to irlclude Parcel A
and the Pruims testified that the delay in filing the application was due
to r1egotiations 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 pennit
application for Parcel B alone.
!d.
The People argue that the Board found that the late filing of the significant modification
pemlit 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
pennits. 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
penn it.
12/4Tr.
at 87-88. The Pruims signed tbe pennits and Mr.
Pe~13rsh
stated
he did
not have responsibility for the pennits and he did not know who hired Andrews. Given
the
Pruims' signatures on the pennit applications as well as their testimony concerning the
Electronic Filing - Received, Clerk's Office, September 28, 2009
43
significant modification pemlit, the Board finds that the Pruims were personally involved and
had active participation in the pemlitting process. Therefore the Board finds that the Pruims are
liable for
CLC's failure to timely file a pemlit application. The Board find that the Pruims
violated Section 21(d)(2) orthe Act (415 ILCS
5/21(d)(2)
(200S)) and Section 814.104 of the
Board's landfill rules (35 Ill. Adm. Code SI4.104) by failing to timely file a significant
modification penllit 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 S07 .603(b)(I) of the Board's rules by failing to provide sufficient financial
assurance. Count
fV
alleges that the Pruims violated Sections 21(d)(2) and 2 1.1 (a) of the Act
(415 ILCS
5/2I(d)(2)
and 21.1(a) (2008)) and Sections 807.60I(a) and 807.603(b)(l) of the
Board's landfill regulations (35 Ill. Adm. Code 807.601(a) and S07.603(b)(I)) by failing to
provide sufficient financial assurance. Count XVII alleges that the Pruims violated Section
21(d)(l) of the Act and special condition number 13 ofpemlit 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 pemlit 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
maImer. Br. at 21. The People argue that the Pruims should be considered operators for
purposes of the Act because thc Pruims are the owners and managers of CLC.
Jd.
Further the
People maintain that the Pruims had the sole authority and ability to finance the arrangement
of
financial assurance for the landfill.
fd.
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.
Id.
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 fmancial assurance for three years and by failing to increase the
financial assurance violatcd 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 S07.601(a) and 807.603(b)(I) 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 thc
Pruims maintained financial assurance only
in their capacity as officers ofthc corporation and
Electronic Filing - Received, Clerk's Office, September 28, 2009
44
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.
Jd.
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 aetive participation in attempts
to obtain
and the failure
to obtain finaneial 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)(I)
of the Board's landfill regulations (35 Ill. Adm. Code 807.601(a)
and 807 .603(b)( I)) 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)(I) 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.
Jd.
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.
Jd.
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
finaneial assurance
as the Pruims had nothing to do with the gas management system. Resp.Br.
at 23.
The respondents rely on testimony indicating that: I) 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 eharge of day-to-day operations, and 4) KMS
installed the gas eollection system and the Pruim expected that KMS would inerease the financial
45
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 Replv. The People argue that the Pruims personally caused the financial
assurance violations and
as sale 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)(l) 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)(l) 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 notcs that on October 3, 2002, the Board found CLC had violated Sections
21 (a), 21 (d)( I) and 21(0)(9) of the Act (415 ILCS 5/2I(a), 21 (d)(l), and 21 (0)(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 asseli 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 pemlitted elevation. Br. at 11-12.
The People note that the annual
landfill capacity certification
f01111S were signed by the Pruims. Br. at 12. The People assert that
those fonms establish that the Pruims knowingly and intentionally allowed the landfill
to exceed
the permitted capacity.
Jd.
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. Furthemlore, the
People point to the records of Morris which show that between April I, 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.
Jd.
46
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 Imew of the
overcapacity at the site and failed to stop dumping
or to close the site. Br. at 14- I 5.
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. la. 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. Ie. The People
point to an addendum to the significant modification permit that provides that the overhcight
is
on the order of 475,000 cubic yards. Br. at 16, Comp.Exh. I
f.
The People maintain that that
addendum was filed over two and a
half years after Parcel B had reached capacity and confimls
both the excessive dumping and the Pruims unwillingness to comply with pemlits 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
rcmaining capacity and the aclmowledgement
of overheight in the significant modification
pemlit,
Robert Pruim denied the landfill was overheighl. 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.
Id.
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. Thc Pcople 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. If. The People
argue
that the later submission of the addendum demonstrates that the amount of overheight in
Parcel B was 475, 000 cubic yards.
Id.
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 pemlitted area for the disposal of
waste and thus violated Section 21 (0) of the Act (415 lLCS
5/21
(0) (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 pemlit and thus
violated Section 21(d)(1)
of the Act (415 lLCS
5121(d)(I)
(2008)) as alleged in Count VIII.
Id.
Electronic Filing - Received, Clerk's Office, September 28, 2009
47
The People maintain that the Pruims caused and allowed the consolidation
of waste from
one
or more sources above the penllitted 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)(I) of the Act (415 ILCS 5.21(d)(I) (2008)) by violating
Standard Condition 3
ofPemlit 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
B .. ld.
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.
Id.
The respondents maintain that ifthere was evidence that the
Pruims Imowingly ordered the operator
to place waste above the penllitted height, that would be
the type
of evidence necessary to establish persona I liability.
!d.
However, the responden ts
argue that the only competent evidence establishes that the Pruims did not Imow that
waste was
placed
over the penllitted 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 fOIlm are the basis for the People's claim that the Pruims
had direct and personal involvement in filling the landfill above the pemlitted height.
Jd.
The respondents assert that the evidence establishes that the Pruims had no Imowledge 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 fonlls; however, the respondents assert
that they signed those reports
as corporate officers and not individually. Resp.Br. at 17, 12/4Tr.
at47,76.
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 cnbic 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.
Jd.
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
Electronic Filing - Received, Clerk's Office, September 28, 2009
48
any kind" that Parcel B was actually filled above 580 feet and
in fact the capacity fomls do not
talk about pemlitted elevations or the amount of waste above pennitled 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 Replv
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 Imowingly continued to dump waste after Parcel B had reached
capacity.
[d.
The People reiterate that landfill capacity certification fOmls and pennit
applications support the People's allegations and respondents claims are "merely an attempt to
avoid an appropriate civil penalty." Reply at 3-4. Furthennore, the signatures
ofthe Pruims on
the
fOmls 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 fonns
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 pennitted capacity. Therefore the Board finds
that the Pruims violated Sections 21(a), 21(d)(I) and 21(0)(9)
of the Act (415 ILCS 5121(a),
2 I (d)( 1), and
21 (0 )(9) (2008)) by allowing the placement of waste in the landfill above the
pemlitted 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
III. 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 (35111. 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
49
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 2I(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)).
Jd.
Respondents' Arguments
The respondents did not directly address this issue in the brief other than in charts
conceming 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 pem1itting and that the Pruims
were liable for failure to secure financial assurance, the Board finds that the Pruims arc also
liable for the failure to revise cost estimates bierU1ially. Like the pennit and financial assurance
requirements, the rcvision of cost cstimates 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 dcclines to apply the "responsible corporate officers doctrine" and instead
reviews the record to detem1ine whether the Pruims had personal involvement
or active
participation in acts which lead
to the violations.
See
People v.
C.l.R.
Proccssing. Inc., 269 Ill.
App.
3d 1013,647 N.E.2d 1035 (3rd dis!. 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, Ill, VI, and XIl (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 pem1it),
Count IV and
XVll (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 detennining 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. III
detemlining the appropriate civil penalty, the Board considers the factors set forth in Sections
Electronic Filing - Received, Clerk's Office, September 28, 2009
50
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 umeasonableness 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 detennining
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 88-7 I (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
$1,250,000 is reached. If the Board were to add to that sum a civil penalty of$IO,OOO 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.
at45. 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 Charactel' 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
tnJury 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 pemlit conditions, and failed to provide
adequate financial assurance for post-closure care.
Jd.
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.
Jd.
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
Electronic Filing - Received, Clerk's Office, September 28, 2009
5 I
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 pennits 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 pernlits 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.
Id.
The People note that
the landfill does not have a valid operating penni!. The People argue that therefore the landfill
does not offer any social or economic value.
ld.
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 Prioritv of Location in the Area Involved (Section 33(c)(iii))
People's Argument. The People asseli 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.
Electronic Filing - Received, Clerk's Office, September 28, 2009
52
Respondents' Arguments. The respondents concede that operating a landfill in
accordance with the Act and Board regulation is teclmically 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 wcre adopted pursuant to the Act, which includes a
requirement that the Board consider the teclmical practicability and economical reasonableness
of rules before adoption. Furthermore, the denial ofa 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.
Anv 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
s, which if granted will bring the landfill into compliance.
ld.
Respondents' Arguments. The respondents assert that the Peoplc did not prcscnt
evidence
on this issue.
Board's Finding on Section 33(c)(v). The Peoplc 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
thcse violations subsequcnt compliance was achieved. A significant modification pemlit was
applied for, financial assurance was updated, and many
of thc 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) orthe 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
8 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$I,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.
53
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 Gravitv (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 pem1it 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 nonc 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 kncw of the deadline for submission of a significant modification
pemlit and waited until completion
of a deal with Morris to file the application.
ld.
Further, the
People assert that the financial assurance was not updated until three years after it was required.
ld.
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.
lei.
The
People assert that specifically by filing the pem1it application late, respondents avoided testing
costs in the amount
of $44,526 as well as $950,000 in costs of removing the overheighl. Br. at
49-50, Comp.Exh. If,
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.
ld
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.
Id.
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.
ld.
The People maintain
that the respondents did not disclose the violations and has not agreed to a supplemental
environmental project.
ld.
Electronic Filing - Received, Clerk's Office, September 28, 2009
54
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 oflandscape waste and the mixing of waste tires.
ld.
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.
ld.
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.
ld.
Respondents argue that the People have provided no evidence ofhann to health,
general welfare, and physical property and the Board should consider that when examining the
gravity of the violations.
ld.
Due Diligence (42(h)(ii)). The respondents argue that the evidence in the record docs
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 pernlit
application was filed, which the Agency rejected.
ld.
CLC sought a variance which ultimately
allowed the filing
of the significant modification peffilit. 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
infornled
of the potential overheight, respondents attempted to mOve the waste.
Jd.
Economic Benelit (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 wcre based on
infoffilation from CLC about the size of the overheight, which may be incorrect based on a later
study.
ld.
The same is true of the numbers developed by Mr. Styzens regarding the overheight.
ld.
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 haffil
to the environment resulted from the financial
assurance violations and the evidence that the overheight may be Icss 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.
ld.
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 detcr 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 peffilit 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.
Electronic Filing - Received, Clerk's Office, September 28, 2009
55
Board's Findine 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 oftllese
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 pennit, 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 pennit 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. !PCB and !EPA, 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 biermial cost revisions have not
occurred. Also the failure to timely file a significant modification pennit allowed respondents
to
operate the landlill 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
Iiling 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 Benel1t (42(h)(jii)). 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
pemlit application. However, there is still some economic benefit from
56
leaving the overheight in place. Furtheffilore, the Board finds the benefit accrued for failure to
timely apply for the significant modification peffilit and the failure
to secure timely financial
assurance
to be significant. Those raw numhers are $44,526 and $32,074 with a time adjusted
rate
0[$73,950 and $72,336. So the record establishes that the economic benefit accrued [or
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(11) (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 peffilit; although, respondents still continue to deny the
existence
of overheigh!. 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 [or 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 Dis!. 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 Dis!. 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 signi ficant modification permit, PCB 01-167, overhcight).
The Board will accept the People's recommendation ofa $250,000 fine against the
respondents jointly and severally. This fine reflects the sheer volume
of violations of tile 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.
,
57
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, VJlI, 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. ApI'. 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
J, 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
pennit)
(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.
58
The Board finds tbat tbe 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
I.
The Board finds that respondents, Community Landfill Company, Inc. and
Edward and Robert Pruim, have committed the violations
as set forth in this
opllllon.
2.
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.
3.
Community Landfill Company, Inc. and Edward and Robert Pruim must
submit
payment of the civil penalty to:
lIlinois Environmental Protection Agency
Fiscal
Services Division
1021 North Grand Avenue East
P.O. Box 19276
Springfield, lIlinois 62794-9276
4.
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 tbe rate
set forth in Section 1003(a)
of the Illinois Income Tax Act (35 ILCS 5/1003(a)
(2006)).
5.
Community Landfill Company, Inc. and Edward and Robert Pruim must cease
and desist from violations
of the Act and the Board's regulations.
Electronic Filing - Received, Clerk's Office, September 28, 2009
S9
IT
IS SO ORDERED.
Section
41 (a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the lIlinois Appellate Court within
35 days after the Board serves the
order. 4151LCS 5/41(a) (2008);
see also 3S
III. 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 III. 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
3S
days after the order is received.
3S
III. 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
of5-0.
John T. Theniault, Assistant Clerk
Illinois Pollution Control Board
CERTIFICATE OF SERVICE
I, Clarissa Y. Cutler, an attorney, hereby certify that I caused to be served a copy of the
foregoing
RESPONDENTS COMMUNITY LANDFILL COMPANY, INC., ROBERT
PRUIM AND EDWARD PRUIM'S MEMORANDUM IN SUPPORT OF THEIR
MOTION FOR RECONSIDERATION OF THE ILLINOIS POLLUTION CONTROL
BOARD'S ORDER DATED AUGUST 20, 2009 by electronic filing, e-mailing, and by placing
same
in first-class postage prepaid envelopes and depositing same in the U.S. Mail Box located
at 200 North LaSalle Street, Chicago, Illinois, this 28
th
day of SEPTEMBER, 2009, addressed
as follows:
By U.S.
Mail and email
Christopher Grant
Jennifer Van Wie
Environmental Bureau
Assistant Attorney General
69 W. Washington, 18th Floor
Chicago, Illinois 60602
cgran t{a)atg.state. i
I.
us
jvanwie@atg.state.il.us
Mark
A. LaRose
LaRose
&
Bosco, Ltd.
200 N. LaSalle Street, Suite 2810
Chicago IL 60601
(312) 642-4414
Atty. No. 37346
Clarissa
Y. Cutler
Attorney at Law
155 North Michigan Avenue,
Suite 375
Chicago IL 60601
(312) 729-5067
AttyNo.44745
By U.S. Mail and email
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
hallorab@ipcb.state.iI.us
/s/ Clarissa
Y. Cutler
One
of Respondents' Attorneys
THIS FILING IS SUBMITTED ON RECYCLED PAPER.
Electronic Filing - Received, Clerk's Office, September 28, 2009