BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
)
by
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
-vs-
)
)
)
EDWARD PRUIM, an individual, and
)
ROBERT PRUIM, an individual,
)
)
Respondents.
)
------------------------------ )
)
)
PEOPLE OF THE STATE OF ILLINOIS,
)
by
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
-vs-
)
)
COMMUNITY LANDFILL COMPANY, INC.,
)
)
Respondent.
)
PCB No.
04-207
PCB No. 97-193
(Consolidated)
(Enforcement)
to: Mr. Mark La Rose, La Rose
&
Bosco
200 N. La Salle Street, #2810
Chicago, IL 60601
Mr. Bradley P. Halloran
Hearing
Officer
Ms. Clarissa Cutler, Attorney at Law
155 N. Michigan,
Suite 375
Chicago,
IL 60601
Illinois Pollution Control Board
100 W. Randolph, #2001
Chicago, IL 60601
NOTICE OF ELECTRONIC
FILING
PLEASE TAKE NOTICE that we have today, October 13,2009, filed with the Office of
the Clerk of the Illinois Pollution Control Board, by electronic filing, Complainant's Response to
Motion for Reconsideration, a copy
of which is attached and herewith served upon you.
Electronic Filing - Received, Clerk's Office, October 13, 2009
BY:
PEOPLE OF THE STATE OF ILLINOIS
ex reI.
LISA MADIGAN
Attorney
State fIllinois
General
of
~
ie
Assistant Attorney General
Environmental Bureau
69 W. Washington St., #1800
Chicago, IL 60602
(312) 814-5388
Electronic Filing - Received, Clerk's Office, October 13, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
)
by
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
Complainant,
-vs-
EDWARD
PRUIM, an individual, and
ROBERT PRUIM, an individual,
Respondents.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
General
of the State of Illinois,
Complainant,
-vs-
COMMUNITY LANDFILL COMPANY,
INC.,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB No. 04-207
PCB
No. 97-193
(Consolidated)
(Enforcement -Land)
RESPONSE TO MOTION FOR RECONSIDERATION
NOW COMES
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and responds to the Motion for
Reconsideration filed by Respondents Community Landfill Company
("CLC"), Edward Pruim,
and Robert Pruim ("Respondents").
1
Electronic Filing - Received, Clerk's Office, October 13, 2009
I.
INTRODUCTION
Motions for Reconsideration are limited to newly discovered evidence, changes in law, or
claimed errors in the Board's previous application
of existing law
1
•
The Respondents do not
bring forth newly discovered evidence, nor do they point to any changes in the applicable law.
Instead, the Respondents claim that the Board misinterpreted existing law. However, the
. Respondents merely repeat the same arguments already put forth in their
Post-Hearing Brief.
These arguments have been considered and rejected by the Board, and the Respondents' Motion
for Reconsideration should be denied.
II.
THE BOARD CORRECTLY FOUND PERSONAL LIABILITY ON COUNTS IV,
V, VII, VIII, IX, X, XVII, and XIX
A.
The Board applied the proper standard in its finding of personal liability
In its August
20, 2009 Opinion and Order ("Final Order"), the Board applied the analysis
laid down in
People
v.
CJR. Processing et ai?
In
CJR.,
the Appellate Court held that a
Defendant could be individually liable for personal involvement and/or direct participation in
violations
of the Illinois Environmental Protection Act ("Act").
In their Motion for Reconsideration, the Respondents ignore the
CJR.
standard, and rely
on the decision in
People
v.
Petco Petroleum Corporation
3
,
which does not relate to individual
liability under the Act. Rather, the
Petco
case was limited to consideration of personal liability
lCitizens against Regional Landfill
v.
County Board o/Whiteside,
PCB 93-156 (March
11~
1993);
People
v.
Community Landfill Company, Inc. and the City o/Morris,
PCB 03-191
(June 1, 2006).
2269 Ill. App. 3d 1013,647 N.E. 2d 1035 (3d Dist. 1995)
3363 Ill. App. 3d, 613, 841 N.E. 2d 1065 (4th Dist. 2006)
2
Electronic Filing - Received, Clerk's Office, October 13, 2009
under the Illinois Oil and Gas Act4. The distinction is significant, because different standards
apply.
In
C.J.R.,
the Court relied heavily on the provisions of Section 2 of the Act, noting:
[aJs we have previously stated, the Act must be liberally construed to effectuate
its purpose
(415
ILCS 5/2(c) (West
1992).
Moreover our General Assembly
intended to impose liability on those responsible
for harming the environment.
(415 ILCS 5/2(b) (West
1992).
Imposing liability only upon the corporation and
not on the individuals involved in harming the environment would undermine the
Act's purposes. Accordingly, we hold that corporate officers may be held liable
for their personal involvement or active participation in a violation of the Acr.
The Illinois Oil and Gas Act contains no language comparable to Section 2 of the Act.
Obviously the General Assembly did not intend that two statutes to be interpreted in the same
fashion6.
Moreover, the decision in the
Petco
dealt with issues of 'overall corporate responsibility'
for remote oil spill violations. Accordingly, the
Petco
decision has no relation to the
remaining
violations against Robert Pruim
&
Edward Pruim7. In finding liability against Edward and
Robert Pruim, the Board found that the Pruims were personally and directly involved in the
actions and omissions leading to the violations. The Board did not find liability under a
Responsible Corporate
Officer theory.
4225 ILCS 725/1-725/28.1
5269 Ill. App. 3d at
1018,
6The definitions of 'person' in each statute also differ.
7In its Final Order, the Board declined to adopt Complainant's suggestion that the
'responsible corporate officer' doctrine should be adopted to find personal liability for remote
daily operating violations, and dismissed the allegations in Counts
I, II, III, VI, and XII against
Edward and Robert Pruim.
3
Electronic Filing - Received, Clerk's Office, October 13, 2009
B.
The Board correctly found personal involvement and active participation in the
'overheight' violations (Counts VII-X)
The 'overheight' violations were the direct result
of the Pruims' continued dumping of
waste at the Landfill after it had reached its permitted capacity. As noted by the Board, the
evidence showed that Edward and Robert
Pruim were fully aware that the Landfill had reached
and exceeded capacity, but decided to continue operations. The evidence also showed that they
were the only persons at CLC who had the authority to stop the dumping and close down, and (as
sole owners
of CLC), the only ones who benefitted financially from the continued operations.
They must be held personally responsible.
The Respondents claim that
" ... there has never been any actual proof submitted that
Parcel B of the landfill is overheight or that there in not any remaining capacity in Parcel B,,8.
This statement ignores their own judicial admissions, and the mountain of evidence presented at
hearing.
On October 3, 2002, the Board granted summary judgment on this issue based on CLC's
admission of overheight. The admission was then corroborated by substantial evidence
introduced at the
2008 hearing. A partial list of this evidence includes 1) Landfill Capacity
Certifications certified by the
Pruims under penalty of law; 2) The Respondents' 1996 SigMod
Permit
application, which included engineer diagrams and surveys showing a significant
overheight9; and 3)
Permit documents submitted by the Respondents in 1997, acknowledging
8Motion for Reconsideration, p.12
9Complainant's Exhibit 1 (e)
4
Electronic Filing - Received, Clerk's Office, October 13, 2009
both 475,000 cubic yards of overheight and continued dumping despite the overcapacitylO.
There is no question that the Pruims knew that capacity was reached, and made a conscious
decision to continue dumping. The result was the unquestionable overheight problems, and the
violations alleged in Counts VII-X. The Pruims were personally and actively involved in these
violations.
C.
The Board correctly found personal involvement and active participation in the financial
assurance violations (Counts IV & XVII)
The undisputed evidence from hearing proved that only Edward and Robert Pruim had
the authority to expend CLC funds, and as sole owners
of CLC, only they benefitted from profits
for continued dumping. Moreover, because they personally guaranteed the financial assurance
instruments (finally obtained in 1996), only they were at risk for the increased level
of financial
assurance. The failure to provide sufficient financial assurance during several periods between
1993 and 1999 was a personal decision by Edward and Robert Pruim. Accordingly, the Board
properly found them in
violation.
D.
The Board correctly found personal involvement and active participation in the Permit
and Cost-Estimate violations (Counts
V &XIX)
In its Final
Order, the Board Found that Edward and Robert Pruim were solely
responsible for Landfill permits, that they delayed submission
of the SigMod permit due to
ongoing negotiations with the City
of Morris, and that they personally failed to timely file the
permit application I I . This decision was fully supported by the evidence at hearing. Similarly,
the Board also has found that the revision
of closure/post closure cost estimates was "in the
IOExhibit 1(t), p.ll
IIFinal Order, pp. 42-43
5
purview of the Pruims .... "12. The Pruims are unable to escape a finding ofliability for these
knowing personal and direct violations. The Board properly applied the appropriate standard in
finding personal liability on these Counts.
III.
THE BOARD IS NOT REQUIRED TO ALLOCATE THE
ASSESSED
PENAL TV
The Board found CLC liable for the violations alleged in 17 counts, and found Edward
and Robert
Pruim liable for the violations alleged in 8 counts. Edward and Robert Pruim were
thereby held liable for 9 violations
of the Act, and four violations of the Board's regulations13.
The Board subsequently imposed a $250,000.00 penalty, joint and several, against all
Respondents
14.
The penalty assessed by the Board is a small fraction of the maximum allowed under the
Act. The statutory maximum for the violations found in Count
V alone amount to
$11,830,000.00
15
. The numbers are similarly staggering for other Counts where the Board found
all Respondents liable. For each overheight count, the duration
of violation amounted to at least
972 days, for a total maximum penalty
of $9,77,0,000.00
16
. Because the Complainant did not
12Final Order, P. 49.
13The Pruims' violations include three separate violations of 415 ILCS
5/21
(d)(1), three
violations
of 415 ILCS
5/21
(d)(2), one violation each of 415 ILCS
5/21
(a), 415 ILCS
5/21.1
(a),
415
ILCS
5/21(0)(9),
and violations of35 Ill. Adm. Code Sections 807.601(a), 807.603(b),
807.623(a),
and 814.104.
14Complainant believes that CLC has no remaining assets, and that the assessed penalty
will need to be recovered from Edward and Robert
Pruim.
15Complainant's Post Hearing Brief, p.47
16Complainant believes that the violations continue to this date. However, the evidence at
hearing showed that the Landfill went overcapacity by September
1, 1994. On April 30, 1997,
the Respondents submitted a permit addendum admitting at least
475,000 cubic yards of
6
seek a penalty in excess of $250,000.00, it has not calculated the statutory maximum penalty for
all 25 violations
of the Act.
Complainant provided evidence that the Respondents derived an economic benefit
of
$1,486,079.00 from violations in three areas (late SigMod Permit filing, failure to update
financial assurance, and overheight)l7.
$1,339,793.00 of this is the State's estimate of the
economic benefit from failure to relocate the overheight waste. Clearly, the Board had sufficient
evidence before it to assess a much higher penalty than the State requested,
just for the
overheight violations.
The Respondents' sole argument for a 'breakdown'
of the penalty is " ... common sense
dictates that itemizing the penalties on a per count basis is required by both the Act and the
regulations, which the Board has failed to
do,,18. Aside from this naked claim, the Respondents
provide no authority. No cases, statutes or regulations are cited in support.
The Board is vested with broad discretionary power in the imposition
of civil penalties 19.
In this case, the Board reviewed substantial evidence and the arguments made by the parties.
The Board also carefully evaluated Complainant's penalty request in comparison to penalties
overheight waste (Complainant's Exhibit
let), p.ll). Using only the Respondents' permit-
related admissions (i.e. including calculating from the date
of the survey in Complainant's
Exhibit 1 ( e) to the 1997
Permit Addendum), the evidence showed a duration of at least 267 days,
resulting in a potential penalty
of $2,720,000.00 for each overheight count.
17Complainant's
Post Hearing Brief, p. 51
18Motion for Reconsideration, p. 18
19E5G Watts, Inc.
v.
Illinois Pollution Control Board,
282 Ill. App. 3d 43,50; 668 N.E.
2d 1015,
1020
7
Electronic Filing - Received, Clerk's Office, October 13, 2009
assessed in similar cases
20
. With multiple violations, each of which would alone support the
entire penalty in this case, the Board should feel no obligation to allocate fractions for each
individual violation. However,
if the Board wishes to allocate penalty, Complainant suggests
that the
$250,000.00 penalty be allocated entirely to Counts VII-X (the overheight counts). The
Board has found all Respondents jointly and severally liable for these violations.
IV.
THE BOARD SHOULD NOT RECONSIDER COUNTS II AND VI
The Respondents attempt to re-argue the Board's imposition of liability on Counts II and
VI, related to the discharge
of leachate from the Landfill to adjacent waters. However the
Respondents' argument is identical to that in its Post-Hearing Brief. The Respondents do not
raise any new arguments regarding the Board's interpretation
of existing law.
The Board already has found that the discharged liquid was leachate, and that its
discharge threatened water pollution. The Board should not again review the identical
arguments in reconsideration.
V.
CONCLUSION
The Respondents have failed to provide any basis for the Board to reconsider its Final
Order. The Respondents' Motion for Reconsideration should be denied.
2°Final Order, p. 56.
8
BY:
RESPECTFULL Y SUBMITTED
PEOPLE OF THE STATE OF ILLINOIS
by
LISA MADIGAN,
Attorney General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement! Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental
Burea~
JENNIFER
~RANT
V AN WIE
Assistant Attorneys General
Environmental Bureau
69 W. Washington
Street, #1800
Chicago, IL 60602
(312)814-5388
(312)814-0609
9
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused to be served this 13
th
day
of October, 2009, the foregoing Complainant's Response to Motion for Reconsideration, and
Notice
of Electronic Filing, upon the persons listed on said Notice by placing same in an
envelope bearing sufficient postage with the United States Postal
Service located at 100
w.
Randolph, Chicago Illinois.
CHRISTOPHER GRANT
