BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
)
vs .
)
PCB No. 03-191
Respondents .
)
COMMUNITY LANDFILL COMPANY,
INC., an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
TO :
Christopher Grant
Environmental Bureau
Assistant Attorney General
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
(Enforcement)
NOTICE OF FILING
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11
Chicago, Illinois 60601
Charles F. Helsten
Scott Belt
Hinshaw & Culbertson, LLP
Scott Belt and Associates, PC
100 Park Avenue
105 East Main Street
P.O. Box 1389
Suite 206
Rockford, Illinois 61105-1389
Morris, Illinois 60450
PLEASE TAKE NOTICE that on March 31, 2006, the undersigned filed an original
and nine (9) copies of RESPONDENT COMMUNITY LANDFILL COMPANY, INC .'s
MOTION FOR RECONSIDERATION OF THE ILLINOIS POLLUTION CONTROL
BOARD'S FINAL ORDER DATED FEBRUARY 16, 2006 with Ms . Dorothy Gunn, Clerk of
the Illinois Pollution Control Board, 100 W. Randolph Street, Suite 11-500, Chicago, Illinois
60601, a copy of which is attached and hereby
- . upon you .
Ol,J,, r,-
One of the Attorneys for Commun
Landfill Co
.
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD .
Attorney No. 37346
200 North LaSalle Street, Suite 2810
Chicago, Illinois 60610
(312) 642-4414
THIS FILING IS SUBMITTED ON RECYCLED PAPER .
RECEIVED
MAR 3
12006
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERICS
OFFICE
MAR 3 1 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
vs .
)
PCB No. 03-191
(Enforcement)
COMMUNITY LANDFILL COMPANY,
)
INC., an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
)
Respondents .
)
RESPONDENT COMMUNITY LANDFILL COMPANY, INC .'s
MOTION FOR RECONSIDERATION OF THE ILLINOIS POLLUTION CONTROL
BOARD'S FINAL ORDER DATED FEBRUARY 16, 2006
Respondent CO
TY LANDFILL COMPANY, INC., by and through its attorneys
LaRose & Bosco, Ltd. and pursuant to 35 Ill .Adm. Code 101.520(b), hereby moves the .Illinois
Pollution Control Board for reconsideration of its final order dated February 16, 2006 and in support
thereof, states as follows :
1
.
This motion is timely filed pursuant to 35 I11.Adm.Code 101 .520(a) which allows a
motion for reconsideration to be filed within 35 days after receipt of the order, which Respondents
Community Landfill Company received on February 24, 2006 .'
2 .
On April 16, 2003, Complainant People of the State of Illinois ("Complainant" or
"People") filed a one-count complaint against and the City of Morris ("Respondents", collectively, or
"CLC" or "City", individually) alleging violations of 35 Ill .Adm. Code 800.700(f) and 800.712(b)
STATE OF ILLINOIS
Pollution Control Board
'The Respondents raise only limited issues in this motion for reconsideration, but contest all of the adverse rulings made
by the Board in its February 16, 2006 Order . The Respondents do not waive and expressly reserve the right to file an
appeal in the Appellate Court of all of the matters adverse to the Respondents contained in the Board's February 16, 2006
Order.
1
resulting in violation of Section 21(d)(2) of the Illinois Environmental Protection Act ("the Act")
.
3. Complainant filed a Motion for Summary Judgment on July 21, 2005 to which both
Respondents appropriately and timely filed its responses and/or cross-motions and/or motion to
strike. The Board's Order concerning the parties' various motions is dated February 16, 2006, and is
attached as Exhibit A .
It is from this order that Respondent CLC seeks clarification and
reconsideration
.
NoFinding Has Been Madeas to any Improper Waste Disposal
4
.
Respondent CLC seeks reconsideration and clarification from the Board concerning
its ruling on the allegations of waste disposal that underly Complainant's allegations of failure to
provide adequate financial assurance
.
5
.
The one-count complaint at issue in this matter alleges in paragraphs 6, 22 and 23 in
summary that from at least June 1, 2000 until the time of filing the complaint (April 16, 2003),
respondents have arranged for and supervised the deposit of waste, including municipal solid waste,
garbage and other or special waste into both parcel A and parcel B at the landfill . (See Complaint,
paragraphs 6, 22 and 23, not attached, but incorporated by reference herein)
.
6 .
The Board granted the Complainant's motion for summary judgment in part, finding
that CLC and the City of Morris violated Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2)(2004))
and Sections 811.700(f) and 811 .712(b) of the Board's regulations. 35 I11.Adm.Code 811 .700(f),
811 .712(b). The Board's order states: "After today's finding of violations, the Board will consider
factors such as the duration of the violations, and whether they are continuing, in its remedy
analysis." (Exh. A, p . 13). It is unclear as to what "finding" the Board is referring to in this
sentence: violations concerning waste disposal or violations of the Board's regulations regarding
financial assurance
.
2
7 .
Because the Board did not rule on the sufficiency of the evidence supporting the
Complainant's allegations of violations of waste disposal, CLC seeks clarification that the only
violations for which findings were made are violations regarding an alleged failure to provide
adequate financial assurance
.
Fact Issues Preclude Summary Judgment
8 .
In addition, at the very least, there are fact issues which preclude a granting of
summary judgment on the issue of any violations concerning waste disposal . Proof of its allegations
of improper waste disposal is a prerequisite to a determination that Respondents' failed to provide
adequate financial assurance
.
9
.
The Complainant offers various Landfill Capacity Certifications from 2000-03 in
support of its allegations that disposal operations in violation of Board regulations occurred
. (See
Exh. H to Complainant's Motion for Summary Judgment, not attached but incorporated by reference
herein). Complainant also offered an affidavit from inspector Mark Retzlaff alleging additional
violations, which the Board struck . (See Exh. I to Complainant's Motion for Summary Judgment; see
Exh. A, p . 12) .
10 .
However, CLC's Answers to Complainant's Second Set of Interrogatories, not
available at the time the Complainant's Motion for Summary Judgment was briefed by the parties are
clearly in opposition to the Complainant's position .2 (See Exh. B) . In response to Interrogatory No .
24, which requested the most recent date that waste was accepted by Respondent CLC at Parcel A
and Parcel B of the Landfill, CLC stated that contaminated soil to be used as cover was last accepted
at Parcel A on December 20, 2005, and material was last accepted at Parcel B in 1996
.
2
Complainant originally propounded its Second Set of Interrogatories on September 6, 2005 . Respondent CLC objected
to the interrogatories but ultimately answered them on January 6, 2006 . CLC filed its response to Complainant's Motion
for Summary Judgment on October 3, 2005
.
3
11
.
In its Order, the Board "
.
. .direct[ed] the parties to hearing on the specific issue of
remedy, including penalty, costs, and attorney fees, if appropriate . The parties are only to present
evidence that is relevant under Sections 33(c), 42(f) and 42(h) of the Act (415 ILCS 5/33(c), 42(f),
(h)
(2004))."
Further, the Board "
.
. .direct[ed] the parties to provide specific figures and
justifications for any proposed penalty."
12
.
If the Board has stricken the Complainant's allegations of continuing violations, and
no specific finding has been made as to any disposal whatsoever, a prerequisite to a finding that
811 .700(f) has been violated, a grant of summary judgment by the Board in favor of the Complainant
on this issue is clearly improper
.
WHEREFORE, Respondent CLC respectfully requests that the Illinois Pollution Control
Board :
(a)
clarify that the only violations for which findings were made are violations regarding
an alleged failure to provide adequate financial assurance; and
(b)
reconsider its grant of summary judgment in favor of Complainant, by finding that
issues of fact preclude a ruling in favor of Complainant, and (c)
(c)
order a hearing as to Respondents' liability in regard to Complainant's allegations of
improper waste disposal, prior to any hearing on remedy concerning failure to provide adequate
financial assurance
.
4
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD
.
200
North LaSalle Street
Suite 2810
Chicago, Illinois
60601
(312) 642-4414
5
Respectfully submitted,
coau~~
Attorney foCommunity Landfill C
pany
CERTIFICATE OF SERVICE
I, Clarissa C. Grayson, an attorney hereby certify that I served a copy of the foregoing
RESPONDENT
COMMUNITY LANDFILL COMPANY, INC.'s MOTION FOR
RECONSIDERATION OF THE ILLINOIS POLLUTION CONTROL BOARD'S FINAL
ORDER DATED FEBRUARY 16,
2006 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 31 st day ofMarch 2006, addressed as follows
:
BY U.S . MAIL
Christopher Grant
Environmental Bureau
Assistant Attorney General
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
BY U.S. MAIL
Charles F. Helsten
Hinshaw & Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd
.
Attorney No. 37346
200 N. LaSalle Street
Suite 2810
Chicago, Illinois 60610
(312) 642-4414
BY U.S. MAIL
Scott Belt
Scott Belt and Associates, PC
105 East Main Street
Suite 206
Morris, Illinois 60450
BY HAND-DELIVERY
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
C
One of the Attorneys for Community Landfill Co
.
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V .
ILLINOIS POLLUTION CONTROL BOARD
February 16,
2006
COMMUNITY LANDFILL COMPANY,
)
INC., an Illinois corporation, and the CITY OF )
MORRIS, an Illinois municipal corporation,
)
Respondents .
PCB 03-191
(Enforcement - Land)
INTERIM OPINION AND ORDER OF THE BOARD (by N.J. Melas) :
On April 17, 2003, the Office of the Attorney General, on behalf of the People of the
.
State of Illinois (AGO), filed a one-count complaint against Community Landfill Company, Inc .
and the City of Morris (respondents) alleging failure to provide adequate financial assurance for
closure and post-closure operations. Community Landfill Company, Inc . (CLC) is the operator,
and the City of Morris (Morris) the owner, of the Morris Community Landfill, a special waste
and municipal solid waste landfill located at
1501
Ashley Road, Morris, Grundy County
.
This order addresses the parties' counter-motions for sununary judgment
. The primary
issue is whether both respondents failed to provide adequate financial assurance for waste
disposal operations in violation of the Environmental Protection Act (Act)
(415
ILCS 5/1
et al .
(2004))
and Board regulations . This order also addresses CLC's motion to strike parts of the
AGO's motion for summary judgment that seeks the Board to impose an interim and immediate
remedy .
For the reasons set forth below, the Board grants CLC's motion to strike the requests for
an interim remedy from the AGO's motion for summary judgment and strikes those parts . The
Board then grants the AGO's motion for summary judgment and denies Morris' counter-motion
.
Today the Board orders the hearing officer to proceed expeditiously to hearing on the issue of
remedy.
PROCEDURAL BACKGROUND
The Board accepted the complaint for hearing on May 1, 2003
. On June 13, 2003, the
City of Morris filed an "Answer and Affirmative Defenses" (Morris Ans .) . The filing, however,
contained no affirmative defenses
.
On June
16,
2003, CLC filed ann answer along with four affirmative defenses (CLC Ans.) .
On July
16,
2003, the AGO filed a reply and a motion to strike the affirmative defenses alleged
2
by CLC (Mot. to Strike). On August 1, 2003, CLC responded to the AGO's motion to strike
(Resp .)
.
On October 16, 2003, the Board granted the AGO's motion to strike in part and denied
the motion in part. The Board granted the AGO's motion to strike the alleged affirmative
defense of estoppel . The Board also granted the AGO's motion to strike CLC's second, third and
fourth alleged affirmative defenses. The Board denied the AGO's motion to strike laches .
The Environmental Protection Agency (Agency) has denied a supplemental permit
application filed by CLC in a prior permit appeal before the Board due to inadequate financial
assurance. On appeal by CLC and Morris, the Board upheld the denial of the permit applications
due to the respondents' failure to provide adequate, compliant financial assurance . See CLC and
Morris v. IEPA, PCB 01-170, slip op . at 22 (Dec. 6, 2001). In Community Landfill, PCB 01-
170, the Board found that the Frontier Bonds did not meet the requirements of 35 Ill . Adm. Code
811.712(b). The Board's finding was confirmed on appeal
. CLC v. PCB, 331 111. App. 3d 1056 ;
772 N.E. 2d 231 (May 15, 2002) .
On July 21, 2005, the AGO moved the Board to grant summary judgment in its favor. On
October 3, 2005, CLC responded and moved to strike portions of the AGO's motion for
summary judgment. On October 4, 2005, Morris responded to the AGO's motion and filed a
counter-motion for summary judgment. On October 18, 2005, the AGO made several filings,
including a response to CLC's motion to strike and a response to the counter-motion for
summary judgment. On that same day, the AGO moved the Board for leave to file a reply in
support of the AGO's motion for summary judgment instanter
. The AGO claimed that CLC
misrepresented the issue of relief and stated that the misrepresentation could result in material
prejudice if the AGO was not allowed to reply. The Board grants the motion and accepts the
AGO's reply .
FACTUAL BACKGROUND
The Site
The Morris Community Landfill is approximately 119 acres in area, and is divided into
two parcels, designated parcel "A," consisting of approximately 55 acres, and parcel "B,"
consisting of approximately 64 acres. Comp. at 2. CLC operates the Morris Community Landfill
and manages the day-to-day operations of both parcels at that site . The respondents have
arranged for and supervised the deposit of waste, including municipal solid waste, garbage, and
special waste, into waste cells at the Morris Community Landfill since at least June 1, 2000 on
parcels "A" and "B" of the landfill . Comp. at 2 .
The Agency issued Significant Modification (SigMod) Permit Numbers 2000-155-LFM,
covering Parcel A, and 2000-156-LFM, covering Parcel B, on August 4, 2000 . Comp . at 3. On
June 29, 2001, the Agency issued Permit Modification Number 2 for parcels A and B . On
January 8, 2002, the Agency issued Permit Modification Number 3 for Parcel A
.
Id.
The
SigMod permits were issued to Morris, as owner, and CLC as operator. Pursuant to these
3
permits, the respondents were to provide a total of $17,427,366 in financial assurance, beginning
in 2000 . SeeMot. Exh. A, p. 45, par. 6; Mot. Exh. B, p. 33, par. 6; CLC and Morris v . TEPA,
PCB 01-48, 49 (cons .), slip op. at 29 (Apr. 5, 2001) .
The respondents provided the Agency financial assurance of closure and post closure
costs by way of three separate performance bonds underwritten by The Frontier Insurance
Company. Comp. at 3; Mot., Exh. C. On June 1, 2000, the United States Treasury Department
removed Frontier Insurance Company from the list of acceptable surety companies listed in the
United States Department of Treasury publication "Circular 570 ." Comp: at 3
.
REGULATORY FRAMEWORK
A short summary of the relevant statutes and rules follows . Section 21(d)(2) of the Act
provides that "[n]o person shall
.
.
Conduct any waste-storage, waste-treatment, or waste-
disposal operation
.
.
. in violation of any regulations or standards adopted by the Board under
this Act." 415 ILCS 5/21(d)(2) (2004) . Section 811 .700(f) of the Board's financial assurance
regulations provides
:
On or after April 9, 1997, no person other than the State of Illinois, its agencies
and institutions, shall conduct any disposal operation at an MSLF unit that
requires a permit under subsection (d) of Section 21
.1 of the Act, unless that
person complies with the financial assurance requirements of this part ." 35 Ill
.
Adm. Code 811 .700(f)
.
Under Section 811 .712(b), the surety company issuing the bond must be licensed by the
Department of Insurance, pursuant to the Illinois Insurance Code, or at least licensed by the
insurance department of one or more states and approved by the U.S. Department of the Treasury
as an acceptable surety. 35 Ill. Adm. Code 811.712(b). Section 811 .712 also provides that the
U.S. Department of the Treasury lists acceptable sureties in its "Circular 570 ."
Id.
SUMMARY JUDGMENT STANDARD
Section 101 .516 of the Board's procedural rules regarding motions for summary
judgment provides
:
If the record, including pleadings, depositions and admissions on file, together
with any affidavits, show that there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law, the Board will enter
summary judgment. 35 111. Adm. Code 101.516 ; see also 415 ILCS 5/26 (2004)
.
Summary judgment "is a drastic means of disposing of litigation," and therefore the
Board should grant it only when the movant's right to the relief "is clear and free from doubt ."
Dowd, 181111. 2d at 483, 693 N.E.2d at 370, citing Putrill v. Hess, 111 111. 2d 229, 240, 489
N.E.2d 867, 871 (1986). "Even so, while the nonmoving party in a summary judgment motion is
not required to prove [its] case, [it] must nonetheless present a factual basis, which would
4
arguably entitle [it] to a judgment." Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d
994, 999 (2nd Dist. 1994) .
THE AGO'S MOTION FOR SUMMARY JUDGMENT
The AGO urges the Board to grant summary judgment in their favor and find the
respondents in violation of the Act and the Board's financial assurance regulations . Further the
AGO seeks an order requiring the respondents to cease and desist from further operations at the
landfill and comply with the closure and post-closure financial assurance regulations, and finally
to immediately set a date for hearing on the issue of civil penalty
.
CLC, on the other hand, argues that genuine issues of material fact exist that preclude a
finding of summary judgment at this time . CLC contends that while the Agency states that CLC
and Morris have not provided adequate financial assurance, the Agency has made a claim on the
very same bonds it claims are inadequate for closure and post-closure care. CLC Resp . at 5
.
CLC maintains that the Agency's conduct regarding the surety bonds is conflicting and
confusing
.
Respondents Conducted a Waste Disposal Operation
The AGO states that the respondents submitted reports to the Agency, signed by the
Mayor of Morris and the President of CLC, acknowledging the receipt of solid waste at the
landfill. Mot. at 8; citing Mot. Exh. H. The AGO further states that waste disposal has
continued at the landfill through at least May 18, 2005 . According to the AGO, the signed
reports and continuing disposal demonstrate that CLC is the operator of the landfill, and was a
recipient of the SigMod permits. Mot. at 8; citing CLC Ans. par. 5 .
The AGO claims that Morris applied for the SigMod permits and provided a Frontier
Insurance Company surety bond in the sum of $10,081,630 .00 as principal. Mot. at 9. The AGO
argues that Morris has profited from waste disposal at the site and has taken an active role in the
permitting process. Mot. at 9 . For these reasons, argues the AGO, both respondents operate the
landfill .
Offensive Collateral Estoppel : Performance Bonds Not Listedin the Circular570
The AGO contends that Section 811 .712 of the Board's regulations requires that
performance bonds used as financial assurance be listed in the U.S. Department of the Treasury
"Circular 570." Mot. at 10; citing 35 Ill. Adm. Code 811.712. The AGO states that the Board
has already found the Frontier Bonds noncompliant in PCB 01-170 . For this reason, the AGO
argues that collateral estoppel applies because : (1) the issue decided in PCB 01-170 is identical
with the one presented here because the bonds are the same ; (2) there was a final judgment on the
merits; and (3) CLC and Morris were also parties to the proceeding in PCB 01-170 . Mot. at 10-
11 ; citing People v. CLC
et al,
PCB 03-191, slip op. at 4-5 (Oct. 16, 2003) .
5
The AGO states there is no unfairness to apply offensive collateral estoppel here and it is
reasonable because there is no further need to litigate the status of the Frontier Bonds. Mot. at
11-12. Therefore, claims the AGO, the Board should find that the AGO is entitled to judgment
on this issue as a matter of law . Mot at 12 .
In response to the status of the Frontier bonds, CLC argues that the Agency's own
conduct should preclude it from maintaining that financial assurance is not in place . CLC states
that on January 27, 2004, almost a year after the present complaint was filed alleging that the
respondents had failed to provide financial assurance, the Agency stated in a letter that Morris
Community landfill "is providing financial assurance for closure and post-closure costs ." CLC
Resp. at 6; citing Resp . Exh. L. At the very least, argues CLC, the letter raises an issue of fact as
to whether adequate financial assurance is in place .
Respondents' Failure to Provide Adequate Financial Assurance Continues
The AGO further states that the respondents have failed to substitute any adequate
financial assurance even after the appellate court's 2002 ruling and the Illinois Supreme Court's
denial of their petition for review. The AGO claims that by continuing to conduct waste
operations at the facility after August 4, 2000, the respondents therefore violated Section
811.700(f) . 35 Ill. Adm. Code 811 .700(f). The AGO contends that the respondents have also
failed to provide annual updates of closure or post-closure costs, or even to annually adjust
estimates for inflation, in violation of Section 811 .701(c) and their SigMod permits . Mot. at 13 .
Because of the alleged violations of Board regulations, the-AGO states the respondents
also violated Section 21 (d)(2) of the Act, the Act's prohibition against violating any of the
Board's land pollution or refuse disposal regulations . 415 ILCS 5/21(d)(2) (2004) .
Respondent's Violations Were Willful, Knowing, and Repeated
According to the AGO, the respondents' actions demonstrate a willful, knowing, and
repeated violation of the Act and Board regulations . The AGO states that the respondents
violated the financial assurance requirements of the Board's regulations and their permits since
August 4, 2000. Since the Illinois Supreme Court's denial of their petition for leave to appeal on
December 5, 2002, argues the AGO, the respondents have been aware that the Frontier Insurance
Company bonds were noncompliant, yet continue to operate the landfill . Mot. at 15
.
Requested Relief
The AGO specifically requests that a separate hearing be held on the issue of civil
penalty. The AGO further requests that the Board order interim relief . The AGO asks the Board
to order the respondents to cease and desist from transporting and depositing any additional
waste at the landfill until they are fully compliant with their permits and the Board's financial
assurance requirements . Further, the AGO asks that the Board find that the respondents'
violations were willful, knowing, and repeated . The AGO asks the Board to order the
6
respondents to immediately provide financial assurance, update the closure or post-closure costs
in accordance with their permits, and initiate closure of parcels A and B of the landfill
.
Regarding the requested relief; CLC states that if the Agency prevails, it will essentially
be recovering "twice from the same allegation." CLC Resp. at 6.' CLC states that if the Agency
prevails on its claim, the result is likely to be financial penalties to CLC and Morris . CLC
continues that the Agency will also likely recover for the very closure and post-closure care for
which it claims financial assurance has not been provided . According to CLC, this result would
allow the Agency to recover twice from the same allegation and result in a contravention of its
duty to use penalties only to enforce the Act, not to punish . CLC Resp. at 6 .
The AGO moved to file a reply
instanter,
claiming that CLC confused the issue of relief,
and stating that this misrepresentation could result in material prejudice . The AGO reiterates that
the Agency has
not
recognized the Frontier Bonds as acceptable . Reply at 3 .
The AGO states that there is nothing "unjust" about the AGO's requested relief. The
AGO states that the Agency knew nothing about the "collateral" that CLC speaks of in the
response, or that CLC and Frontier had agreed that CLC was not required to make payments on
the bonds. The violation, claims the AGO, lies in that the respondents never substituted financial
assurance once the Frontier Bonds were deemed noncompliant, and continued to operate the
landfill. Reply at 4 .
The AGO states that payment or performance by Frontier is not the relief the AGO seeks
in the motion for summary judgment. The AGO contends that by continuing operations for three
years after the Frontier Bonds were found noncompliant without providing alternate financial
assurance, CLC has demonstrated a knowing, willful, and continued violation of the Act. Reply
at 5
.
For these reasons, the AGO argues it is entitled to an order requiring CLC and Morris to
cease and desist from additional violations . CLC and Morris must also provide, states the AGO,
new, compliant financial assurance
.
MORRIS' COUNTER MOTION FOR SUMMARY JUDGMENT
Morris moves the Board for summary judgment in its favor because it did not "conduct"
and disposal operation at the Morris Community Landfill, and because it has complied with
' As discussed below, CLC references the Agency and the AGO interchangeably, at times,
throughout pages 5-7 of CLC's response to the AGO's motion for summary judgment. For
example, by stating "[i]fthe Agency prevails on its claims
.
. ." the CLC is confusing the
complainant in this proceeding. The Board nonetheless discusses CLC's arguments in the
discussion section below .
7
Sections 811 .706 and 811.717 of the Board's regulations
. Morris Mot. at 2, 8; citing 35 111. Adm .
Code 811 .706, 811 .717
.
The AGO states that Morris' argument that it is not "'conducting a waste disposal
operation' at the Morris Community Landfill
.
. . defies common sense, and is legally incorrect ."
Resp . at 1-2. The AGO contends that Morris has been permitted as either an "owner" or
"operator" and actively participated in landfill decisions since 1974
. AGO Resp . at 2. The AGO
further states that Morris contracted with CLC on all permitting and financial assurance issues,
and financially benefited from landfill operations
.
Id .
Morris Did Not "Conduct Any Waste Disposal Operation"
Morris' Arguments
Morris' first argument in support of a Board granting summary judgment in its favor is
that Morris did not "conduct any waste disposal operation" at the Morris Community Landfill .
Morris contends that Section 21(d)(2) of the Act provides "no person shall
.
.
. conduct any
waste-storage, waste-treatment, or a waste-disposal operation
.
.
. in violation of any regulations
or standards adopted by the Board under this Act ." 415 ILCS 5121(d)(2) (2004)
. Therefore,
according to Morris, by the plain language of the Act, the requirements of that section only apply
to a person that "conducts" a waste disposal operation. Morris Mot. at 2
. Moms contends that
the well-settled rules of statutory construction provide that words must be given their plain and
ordinary meaning .
Id. ;
citing King v. First Capital Financial Services Corp
., 215 Ill . 2d l,'828
N.E.2d 1155, 1169 (2005)
.
Morris cites to the Black's Law Dictionary's definition of "conduct :" "to manage; direct
;
lead; have direction; carry on; regulate; do business." Morris Mot. at 2; citing Black's Law
Dictionary, 295 (6th Ed . 1990). Morris states that based on the definition of "conduct," there is
no question that Morris does not conduct a waste disposal operation because it is not managing,
leading directing, carrying on, regulating or doing business as a waste disposal facility
. Rather,
argues Morris, it merely owns and is the fee titleholder of the property that CLC uses for waste
disposal activities. Morris Mot. at 2
.
Morris states that CLC is listed as the operator on the Agency-issued permits
. Morris
Mot. at 3. Further, argues Morris, Mr . Brian White, an affiant the AGO relied upon in support of
the motion for summary judgment, states that the owner of a facility does not necessarily have to
post closure and post closure financial assurance. Morris Mot . at 3, Exh. B at 37-38 .
Moms states that the Board has held that where a waste disposal operation is owned and
operated by separate entities, it is the operators of such sites, not the owners, who are responsible
for posting of the requisite financial assurance . Morris Mot. at 7; citing People v. Wayne Berger
and Berger Waste Management, PCB 94-373 (May 6, 1999) . Moms notes that in Berger, the
Board held that the owner of the landfill did not become the operator when it received title to the
property and, consequently, was not liable for the financial assurance violation alleged in Section
21(d) of the Act .
8
Morris argues that like the owner company in Berger, and in accordance with the plain
language of Section 21(d)(2) of the Act and Section 811 .700(1) of the Board's regulations, Morris
does not conduct a waste disposal operation at the site . Morris Mot. at 8 .
The AGO's Response
According to the AGO, the Board should find that, as a matter of law, holding an Illinois
EPA permit for waste disposal at a landfill constitutes "conducting a waste disposal operation ."
AGO Resp. at 2. The AGO states that Morris obtained 35 Agency permits, including
modifications, regarding waste disposal at the Morris Community Landfill
.
Id .
at 3. The AGO
asserts that Agency records show that five permits issued to Morris show Morris as the "owner
and operator." AGO Resp. at 4 .
Above and beyond being a named operator of the landfill, the AGO states that joint action
with CLC demonstrates that Morris was an active participant at the landfill . For example, the
AGO notes that Morris applied for and received joint waste disposal permits with CLC, provided
noncompliant financial assurance in excess of ten million dollars, litigated the validity of the
Frontier Bonds along with CLC, and failed to replace the Frontier bonds with substitute financial
assurance. The AGO also states that Morris benefited financially from the landfill operations
.
AGO Resp. at 6 . These activities, claims the AGO, demonstrate that Morris was an active
participant in the landfill
.
The AGO contends that Wayne Berger is clearly distinguishable from the facts at hand .
In Wayne Berger, the Board found that the landowner did not "conduct a waste disposal
operation." Wayne Berger is distinguishable, however, because the operator transferred the
property to the landowner after being cited for operational and financial assurance violations, no
permit was transferred with ownership of the property, and the landowner was never issued any
Agency-issued permits. AGO Resp, at 7 ; citing Wayne Berger, slip op . at 8 .
In contrast, states the AGO, Morris is a permitee of 35 permits for waste disposal
activities, five of which name Morris as "owner and operator." AGO Resp. at 7 . Further, the
AGO asserts that Morris did not acquire the landfill after the violations occurred
. Rather, Morris
has owned the Morris Community Landfill since its original development
.
Id.
The AGO states the rules of statutory construction dictate that the Act and Board
regulations should be construed to affect their purpose and to avoid absurd results . AGO Resp
.
at 8; citing Mulligan v. Joliet Regional Port District,
123 Ill. 2d 303.313 (1988) ; Lionel Trepanier
et al., v.
Speedway Wrecking Co ., PCB 97-50 (Jan . 6, 2000)
.
The AGO first contends that the term "conduct" should be broadly construed. The AGO
states that Morris is not only the owner' of the property, but also of the Morris Community
Landfill itself. AGO Resp. at 10. The AGO states that although Morris leased the landfill to
CLC, it never conveyed the title to CLC. Rather, Morris has continued to be bound under
subsequent permits, provided surety bonds, and appealed permit denials . AGO Resp. at 10
.
9
The AGO contends that pursuant to Morris' interpretation, Section 21(d) of the Act and
regulations promulgated under it would only apply to the person physically disposing of the
waste. Morris's approach, claims the AGO, would allow permitted owners to set up "operator"
entities to avoid the consequences of violating the Board's landfill management regulations
.
AGO's Resp. at 10. At the Morris Community Landfill neither the owner nor the operator of
CLC has provided compliant financial assurance
.
CLC's Response
CLC opposes Morris' counter-motion for summary judgment stating that it lacks legal
foundation and must be denied. CLC states that Morris is not merely a fee title holder of the
landfill, but rather an operator that is substantially involved in conducting the waste disposal
operation. CLC Resp. at 1. CLC states that courts and the Board itself have broadly interpreted
the definition of an operator depending "on the specific facts of the case as a whole." CLC Resp
.
at 2; citing People v. Bishop, 315 Ill. App. 3d 976, 978; 735 N.E.2d 754, 757 (5th Dist. 2000) .
According to CLC, the Board's regulations are clear that "[t]he owner or operator shall
provide financial assurance to the agency
.
.
. ." CLC Resp. at 2; citing 35 111. Adm. Code
811 .700(b) . CLC's interpretation is that this Section does not limit the responsibility solely to
either entity. Further, Morris has litigated financial assurance issues involving the Morris
Community Landfill for years
.
CLC also states that Morris' involvement in the permitting process and pledge of
financial assurance qualify as substantial involvement in the operation of the landfill . CLC states
that Morris has committed, in an addendum to a lease agreement, to treat leachate, condensate,
and groundwater at the landfill . CLC Resp. at 3; Exh. 2 ; citing Bishop .
CLC contends that pursuant to Board rules, the operator, not the owner "is responsible for
the operation of a leachate management system designed to handle all leachate as it drains from
the collection system." CLC Resp. at 3 ; citing 35 Ill. Adm. Code 811 .309(a). Therefore, by
agreeing to treat leachate at the landfill,, and providing financial assurance, Morris is an operator
that conducts a waste treatment operation . CLC Resp. at 3. CLC states that at the very least,
Morris' actions demonstrate a genuine issue of material fact making summary judgment
inappropriate at this time .
Id .
Morris' Reply
In its reply, Morris disputes the AGOs' arguments for several reasons . First, Morris
states that the AGO's argument that Morris "conducts a waste disposal operation" simply
because it was listed as an "owner and operator" on permits issued decades ago must fail . Morris
contends that when it was issued permits in 1974 and supplemental permits in 1978, 1980, and
1989 that listed Morris as the "owner and operator," there was no obligation for a local unit of
government to post any financial assurance. Even currently, Morris states that the financial
10
assurance requirement under Section 807 .601 (a) does not apply to "any unit of local government
.
Morris Reply at 1 ; citing 35 Ill. Adm. Code 807.601(a)
.
Morris agrees that "whether one is an operator pursuant to the Act depends on the specific
facts as a whole." Morris Reply at 2; citing Bishop, 315 Ill. App. 3d 976, 979, 735 N.E.2d 754,
757 (5th Dist. 2000). Morris states, however, that it has not conducted any disposal operation
since 1982. Morris states no City of Morris employee has ever spread and compacted waste,
operated earth-moving equipment or conducted any other waste disposal operations at the
landfill. Morris Reply at 3
.
Agency employees, states Morris, concede that CLC is the entity that performs the day-to-
day operations, not Morris. Morris contends that the record shows that Morris is not conducting
a waste disposal operation, and thus, has no duty to post financial assurances for closure or post-
closure care. Morris Reply at 5 . Morris states that "merely contracting with an operator does not
make the other contracting party the `conductor' of a landfill operation ."
Id .
at 6; citing Bishop,
735 N .E.2d 754, Termaat v. Anderson,
et
al.,PCB 85-129 (Oct. 23, 1986), Berger, PCB 94-373
.
Likewise, Morris states, receiving financial benefit does not mean that Morris is conducting a
waste disposal operation. Morris Reply at 7 . Morris asserts that host fee agreements are
common and that no local unit of government would ever vote in favor of siting a landfill if
doing so would subject it to financial assurance requirements .
Id.
at 7-8. That argument, states
Morris, is "disingenuous and ridiculous ."
Id.
at 8 .
Morris states that enforcing the Act and Board regulations to require owners
or
operators,
but not both, to provide financial assurance does not produce absurd results . Morris Reply at 9
.
According to Morris, the law is clear that a unit of local government is exempt from the financial
assurance requirements unless it conducted landfill operations after April 9, 1997
.
Id . ;
citing 35
Ill. Adm. Code 811 .700(e), (f) . According to Morris, the Board need only enforce the plain
language of the statute and regulations to award summary judgment in favor of Morris
. Morris
Resp . at 10. Morris states that because it is excluded from posting financial assurance in this
case, Morris has not committed any willful or repeated violations . For all of these reasons,
Morris urges the Board to grant summary judgment in its favor . Morris Resp . at 11
.
Morris Has Complied With All Financial Assurance Requirements
Morris' second argument in support of a finding of summary judgment in its favor is that
Morris has complied with the financial assurance requirements of Sections 811.706 and 811.717
of the Board's procedural rules . 35 Ill. Adm. Code 811 .706, 811 .717
.
Morris disputes the AGO's argument that Morris has failed to provide financial assurance
in compliance with one of the ten mechanisms, a surety bond guaranteeing performance under
subsection 811 .706(a)(3), set forth in Section 811 .706(a). Morris states that it "can and would
provide financial assurance in compliance with the mechanism set forth in Section 811
.717,"
which is the local government guarantee. Morris contends that because it could comply with
Section 811 .706 through the posting of local government guarantee to perform closure and post
1 1
closure activities, the Board should find there is no genuine issue of material fact that Morris can
and will comply with all rules and regulations and grant summary judgment in its favor
.
The AGO claims that Morris' argument that it has offered, or could offer, the Agency
financial assurance in the form of a local government guarantee is misleading and false . In fact,
states the AGO, neither respondent has provided financial assurance in the form of any of the ten
mechanisms in Section 811 .706. It is not enough for Morris to say that it "can and would"
provide the local government guarantee as the method of financial assurance. Morris simply has
not met the requirements of Section 811 .716 or 811 .717. AGO Resp . at 15 .
The AGO again state that Morris' failure to provide compliant financial assurance since
August 8, 2000 to the present, especially subsequent to the Illinois Supreme Court's ruling that
the Frontier Bonds were noncompliant on December 5, 2002, demonstrates that the alleged
violations are knowing, willful, and repeated. AGO Resp. at 16
.
CLC'S MOTION TO STRIKE PARTS
OF THE AGO'S MOTION FOR SUMMARY JUDGMENT
CLC moves the Board to strike portions of the AGO's motion for summary judgment in
which CLC claims the AGO alleged continuing violations and separate relief beyond that which
is set forth in the initial complaint . Mot. to Strike at 1-2. CLC asks the Board to strike both
allegations that disposal operations continued at the landfill (Mot . at 4, par. 7, 8, par. 17), and a
request that the Board order CLC to cease and desist from transporting or depositing any
additional material at the landfill (Mot . to Strike at 16, par
. 38(3)) .
In general, the AGO contends that CLC's motion to strike is untimely. The AGO argues
that CLC was granted an extension of time to respond
only
to Morris' counter motion for
summary judgment. The AGO contends, therefore, that CLC's motion to strike should be denied
as untimely .
Allegations ofContinuing Disposal Operations
CLC states that the Board's procedural rules require the AGO to move to amend the
complaint and to provide just and reasonable cause for the amendments . Mot. to Strike at 2 ;
citing People v. Petco Petroleum Corp ., PCB 05-66, slip op. at 3 (May 19, 2005). Regarding the
new request for relief, CLC contends that while the Board's procedural rules allow the moving
party to "move the Board for summary judgment for all or any part of the relief sought," the relief
the AGO seeks is newly pled. Mot. to Strike at 3 ; citing 35111. Adm. Code 101.516(a) .
The AGO responds that the motion for summary judgment does not seek to add any
additional violations. For this reason, CLC's reliance on Petco Petroleum is not applicable
.
Resp . at 3; citing Petco Petroleum, PCB 05-66 . The AGO states that also included in its motion
is a request for specific interim relief. The AGO states that the Board's orders that accept
matters for hearing demonstrate that the Board encourages such a request . Resp. at 3
.
12
Request for Cease and Desist Order
Further, contends CLC, while the Board does have the power to issue a cease and desist
order, it may only do so upon issuing a final order . 415 ILCS 5/33(a) and (b) (2004) . CLC states
that a cease and desist order
.is premature. CLC, therefore, asks the Board to strike the AGO's
request for a cease and desist order .
The AGO states that nothing in the Act prevents the Board from issuing a cease and
desist order after a finding of liability, but before issuing a final order . Resp. at 4. The AGO
claims that the language of Section 33 of the Act stating "
.
.
. the Board shall issue and enter such
final order, or make such final determination
.
. ." assumes that there will be cases where only
certain issues are determined. Resp . at 5; citing 415 ILCS 5/33 (2004) . The AGO cites Section
33(b) of the Act that states "such order may include a direction to cease and desist from
violations of this Act
.
.
. ," which allows the Board to issue cease and desist orders dealing with
those certain issues
.
Id .
As an example of where the Board has granted partial summary judgment prior to hearing
on penalty, the AGO cites to People v. Michael Stringini, PCB 01-43 (Oct. 16, 2003). Resp. at
5-6 ; citing also Krautsack v. Patel
et al.,
PCB 95-143 (Aug. 21, 1997) (granting partial summary
judgment, ordering the respondents to cease and desist from further violations, and ordering a
respondent to remediate the site, but deferring the Board's final decision on civil penalty) .
Finally, the AGO states that the appellate courts have recognized that the Act has "conferred
upon the
.
.
. Board those powers that are reasonably necessary to accomplish the legislative
purpose of the administrative agency
.
.
. and necessarily the power to order compliance with the
Act." Resp. at 6 ; citing Discovery South Group Ltd . v. PCB, 275 Ill. App. 3d 547 (1st Dist
.
1995) .
The AGO states that the interim relief requested is the only way for respondents to come
into compliance with the Act. Resp . at 6. In fact, the AGO contends that the Board should deny
CLC's motion to strike and order the respondents to come into compliance on an expedited basis .
Id.
at 7 .
BOARD DISCUSSION
Board Analysis of CLC's Motion to Strike
The Board grants CLC's motion to strike both the AGO's allegations of continuing
disposal operations as well as the AGO's request for an interim order requiring CLC to cease and
desist from further violations of the Act. The Board disagrees with CLC's argument that the
AGO has alleged new violations . Rather, the Board finds that the AGO's allegations that
disposal operations have continued at the landfill are allegations of continuing violations, not
newly pled violations .
The Board further finds it is premature to rule on the issues of penalty or attorney fees
at this time. Under Section 33 of the Act, a Board order may include a direction to cease and
13
desist from violations of the act or any rule adopted under this Act, but only after determining
the reasonableness of the emissions
.
See
415 ILCS 5/33(a)-(c) (2004). As held in the past, the
Board looks to the factors in Section 33(c) and Section 42(h) of the Act (415 ILCS 5/42
(2004)) in determining and assessing penalties and each of those factors require factual
determinations
. People v. CLC, PCB 97-193,
slip op .
at 10 (Apr. 5, 2001). The Board has
previously found that "the factors are not appropriately discussed in an order on cross motions
for summary judgment." CLC, PCB 97-193,
slip op .
at 10 (Apr. 5, 2001) ;
see also
People v. J
& F Hauling, Inc
., PCB 02-201 (June 6, 2002) . After today's finding of violations, the Board
will consider factors such as the duration of the violations, and whether they are continuing, in
its remedy analysis
.
The parties may address the economic benefits gained by respondent, the duration of
the violations, as well as the remaining factors under Section 42(h) of the Act (415 ILLS 5/42
(2004)) at hearing and in final briefs on the issue of remedy . Further, whether a respondent's
violations were willful, knowing, and repeated are considered in deciding whether to award a
complainant attorney fees . For this reason, the Board grants CLC's motion and strikes
references to the AGO's requests for relief from the summary judgment pleading
.
Board Analysis of Cross Motions for Summary Judgment
The Board finds that there are no genuine issues
of
material fact regarding the alleged
violations. Therefore summary judgment is appropriate and the Board grants summary judgment
in favor of the complainant for the reasons discussed in more detail below
.
This case involves a single alleged violation of the Act and two violations of
corresponding Board regulations . Section 21 (d)(2) of the Act prohibits any person from
conducting a waste disposal operation in violation of any Board regulations
.
See
415 ILCS
5/21(d)(2) (2004). The Board regulations at issue are : (1) the requirement for any person
conducting any disposal operations to comply with the financial assurance requirements (35 Ill
.
Adm. Code 811 .700(f)); and (2) that any surety bonds must provided by a surety company
approved by the U.S. Department of Treasury as an acceptable surety in its list of acceptable
sureties, known as the "Circular 570" (35 Ill . Adm. Code 712(b)) .
Therefore, the issue is what constitutes "conduct" in determining whether CLC and
Morris conducted any waste-disposal operations at the Morris Community Landfill . The Board
addresses the counter motions together and grants summary judgment in favor of the AGO,
finding that both CLC and Morris violated the Act and Board regulations that require any person
conducting disposal operations to comply with the financial assurance requirement mandating
that surety bonds must be licensed as an acceptable surety in the U .S. Department of Treasury's
Circular 570 .
CLC and Morris ConductedWaste Disposal Operations
The Board is persuaded by the AGO's argument that the Board takes abroad view of
what types of activities might constitute "operating" a waste disposal site
. People v. Poland,
14
Yoho, and Briggs Ind., Inc.,et al ., PCB 98-148, slip op. at 18 (Sept. 6, 2001). The Board does
not, however, adopt the AGO's position that as a matter of law, holding an Illinois EPA permit
for waste disposal at a landfill constitutes "conducting a waste disposal operation" (AGO Resp .
at 2). Like the court in Bishop, the Board looks beyond the permit to the specific facts of the
case as a whole
.
See Bishop, 735 N.E.2d at 757-58 .
For example, in Briggs, PCB 98-148, the Board found that Briggs was involved in the
day-to-day operations of the site . Briggs was responsible for half of the bulldozing expenses and
half of the engineering fees. The record showed that Briggs did not even profit from disposal
activities at the unpermitted site, but despite the fees paid, the arrangement was still a "good
deal" for Briggs. While the facts of Briggs are distinguishable in some ways from the facts at
hand, similarities may be drawn since the Board typically "looks beyond the permit" to day-to-
day operations and maintenance
.
In Termaat, Boone County and the City of Belvedere, listed as owners of the landfill at
issue, had assumed responsibility to assure proper closure and post-closure cafe of the site, used
the tipping fees and, when necessary, other public funds to pay for all site operations . In
comparison, the Board considered the activities of an independent contractor who actually
operated the site. The contractor performed limited services under the direction of the City and
County and had little discretion in performing his duties . The Board concluded that the
contractor's responsibility "do not rise to the level of an operator conducting a waste disposal
operation as anticipated in the Act and Board regulation ." Termaat, PCB 85-129 slip op. at 5
.
In looking at the facts of the case and considering what is anticipated by the Act and
Board regulations to be the behavior of an operator conducting
a
waste disposal operation, the
Board finds both parties responsible for operating the site and, therefore, conducting the waste
disposal operation that is Moms Community Landfill . While there must be at least one site
operator, the Act does not prohibit more than one party from operating a site
. In this case, the
Board finds that both parties participated in the operations
.
While Morris may not actively conduct the day-to-day operations at the landfill, Morris
also does not "passively own land upon which waste disposal operations are (or have been)
conducted." Morris Resp. at 7 . Morris financed the operation, litigated in conjunction with
CLC, as well as profited from and treated the leachate from the Morris Community Landfill
.
While these activities alone may not constitute "operating" a waste disposal site, Morris also had
discretion regarding the decisions at the site and took responsibility for some of the ancillary site
operations such as the treatment of leachate from the landfill . The Board finds that the grand
sum of Morris' conduct rises to the level of "operation" as anticipated by the Board in using that
term in Section 811 .700(f) .
Compliance With Financial Assurance Requirements
The Board disagrees with Morris' argument that it has complied with any or all financial
assurance requirements. The capacity to comply is not relevant, only actual compliance with the
Act and the Boards' requirements . It is undisputed that neither Morris nor CLC have provided
adequate financial assurance
.
Offensive Collateral Estoppel Applies,
On October 16, 2003, the Board found that the issue of whether the Frontier bonds
complied with Board regulations has been previously adjudicated and resolved in a permit appeal
involving the same parties before the Board
. People v. CLC and Morris, PCB 03-191 (Oct. 16,
2003); referring to Community Landfill, PCB 01-170. The Board reiterates here that the
respondents' noncompliance with financial assurance requirements, the same as alleged in this
enforcement matter, has already been resolved .
The Board also notes that
res judicata,
the rule that a final judgment by a court of
competent jurisdiction is a bar to subsequent action involving the same claim, 2 does not apply
between PCB 01-170 and this proceeding because there is no required identity of causes of
action. "An enforcement case and a permit appeal are not the same `cause of action,' primarily
because of the different inquiry involved in each ." ESG Watts, Inc., v. IEPA, PCB 97-210, slip
op. at 4 (July 23, 1998). On the other hand, and as discussed in the Board's October 16, 2003
order, collateral estoppel
can
apply to preclude relitigation of a specific issue, even where the
requirements of
res judicata
are not met .
See Id,
In Community Landfill, PCB 01-170, the Board affirmed the Agency's decision denying
CLC's SigMod permit request. The Board found that because Frontier was removed from the
Circular 570 list on June 1, 2000, the Agency properly denied CLC's permit application on
May 11, 2001
.
Community Landfill, slip op. at 13. The Agency's denial letter identified its
reason for denying the permit with respect to financial assurance as CLC's noncompliance with
Sections 811 .700(1) and 811 .712(b) . Community Landfill, slip op . at 9
.
The purpose of financial assurance is to provide a guarantee to the State that funds will be
available in the event a landfill owner or operator fails to perform needed closure and postclosure
or to address any other environmental problems that may occur during and after the operating life
of the landfill
. People v. ESG Watts, Inc., PCB 96-233, slip
op .
at.1l (Apr. 16, 1998); citing 35
Ill. Adm. Code 807 .603. Inadequate financial assurance could cause the State, at taxpayer
expense, to clean up or even close a facility
.
See
People v. ESG Watts, Inc ., PCB 96-237
(Feb. 19, 1998). The Board finds the alleged violations of Section 21 (d)(2) of the Act and
Sections 811 .700(1) and 811 .712(b) of the Board's regulations, and grants the AGO's motion for
summary judgment. Accordingly, Morris' counter-motion for summary judgment is denied .
This interim opinion and order constitutes the Board's findings of fact and conclusions of
1 5
law .
2
Black's Law Dictionary
;
West Publishing Co., 6th Edition, 1996 .
16
ORDER
1
.
The Board grants Community Landfill Corporation's motion to strike and strikes
the requests for an interim remedy from the AGO's motion for summary
judgment .
2 .
The Board grants the AGO's motion for summary judgment in part, finding that
Community Landfill Corporation and the City of Moms violated Section 21(d)(2)
of the Act (415 ILLS 5/21(d)(2) (2004)), and Sections 811 .700(f) and 811 .712(b)
of the Board's regulations . 35 Ill. Adm. Code 811 .700(f), 811 .712(b)
.
3
.
The Board denies the City of Morris' counter motion for summary judgment
.
4 .
The Board directs the parties to hearing on the specific issue of remedy, including
penalty, costs, and attorney fees, if appropriate . The parties are only to present
evidence that is relevant under Sections 33(c), 42(f) and 42(h) of the Act (415
ILLS 5/33(c), 42(f), (h) (2004)) . The Board directs the parties to provide specific
figures and justifications for any proposed penalty .
IT IS SO ORDERED
.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above interim opinion and order on February 16, 2006, by a vote of 4-0
.-
Dorothy M. Gurm, Clerk
Illinois Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v .
)
PCB No. 03-191
(Enforcement)
COMMUNITY LANDFILL COMPANY, INC., an
)
Illinois corporation, and the CITY OF MORRIS,
)
an Illinois municipal corporation,
)
Respondents
.
)
RESPONDENT COMMUNITY LANDFILL
COMPANY INC'S RESPONSE TO COMPLAINANT'S SECOND SET OF
INTERROGATORIES AND REQUEST FOR THE PRODUCTION OF DOCUMENTS
NOW COMES
Respondent
Community
Landfill
Company,
Inc.,
("CLC"
or
"Respondent"), by and through its attorneys LaRose & Bosco, Ltd ., and in response to
Complainant's Second Set of Interrogatories and Request for the Production of Documents as
follows
:
INTERROGATORIES
Interrogatory No. 19
For each calendar year from 2000 to the present, state the amount of Waste, in Cubic
yards and tons, brought to and deposited in parcel A of the landfill. For the year 2005, state
year-to-date volume and weight, and specify the last applicable date .
If no information is
available by parcel, state the total amount of Waste deposited in the landfill
.
ANSWER :
No "waste" has been deposited, disposed or dumped in Parcel A after permit nos . 2000-
438, 2001-012 and 2001-051 were denied and father relief subsequently denied by the Illinois
Pollution Control Board, the Third District Appellate Court of Illinois, and the Illinois Supreme
Court. However, CLC has continued to accept contaminated soil at Parcel A to be used as cover
.
Interrogatory No. 20
For each calendar year from 2000 to the present, state the amount of Waste, in cubic
yards and tons, brought to and deposited in parcel B of the landfill . For the year 2005, state year-
to-date volume and weight, and specify the last applicable date
.
ANSWER :
Zero (0) . Material was last accepted at Parcel B in 1996 .
Interrogatory No. 21
For each calendar year from 2000 to the present, state the total sum, in dollars, paid to
Respondent CLC by any person(s) for disposal, deposit, or dumping of Waste at the landfill
.
ANSWER :
No material has been placed in Parcel B since 1996 . No "waste" has been deposited,
disposed or dumped in Parcel A after permit nos . 2000-438, 2001-012 and 2001-051 were denied
and further relief subsequently denied by the Illinois Pollution Control Board, the Third District
Appellate Court of Illinois and the Illinois Supreme Court. However, CLC has continued to
accept contaminated soil at Parcel A to be used as cover
.
2
2000
191,462
2001
164,620
2002
87,869
2003
21,890
2004
41,117
2005
25,230 (through Nov . 2005)
2000
$1,717,325 .59
2001
$2,280,096.17
2002
$1,300,226.18
2003
$590,662.35
2004
$550,175.00
2005
$428,832.62
Interrogatory No. 22
For each calendar year from
2000 to
the present, state the gross receipts and/or sales of
CLC. For the year
2005,
state year-to-date receipts and/or sales, and specify the last applicable
date .
ANSWER
:
Total amount billed
:
2000 $1,789,916.00
2001 $2,152,940 .84
2002 $1,216,806.85
2003 $665,596 .82
2004 $815,683 .93
2005 $497,565.00
(through Nov .
2005)
Interrogatory No. 23
For each calendar year from
2000
to the present, state the dollar amount of royalties paid
by Respondent CLC
to
Respondent City of Morris .
ANSWER :
2000 $246,546.45
3
Note :
The figures herein are different than those previously provided by CLC in its First
Supplemental Response to Complainant's First Set of Interrogatories and Request for Production
on September 28, 2004 because those previously provided figures inadvertently included
payments by CLC to the City of Morris for tax payments as well as royalty payments
.
Interrogatory No. 24
State the most recent date that waste was accepted by Respondent CLC at :
a .
Parcel A of the landfill
b .
Parcel B of the landfill
ANSWER :
a .
Contaminated soil to be used as cover was last accepted at Parcel A on December
20, 2005
.
b .
Material was last accepted at Parcel B in 1996 .
Respectfully submitted,
By
4
COMMUNITY LANDFILL COMPANY,
One of Its Attorneys
2001
$242,527 .55
2002
$63,226.01
2003
$0
2004
$73,925 .07
2005
19,630.35
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD .
Attorney No . 37346
200 North LaSalle Street, Suite 2810
Chicago Illinois 60610
(312) 642-4414
(312) 642-0434 (Fax)
5
CERTIFICATE OF SERVICE
I, Clarissa C. Grayson, an attorney hereby certify that I served copies of the foregoing
RESPONDENT COMMUNITY LANDFILL COMPANY INC'S RESPONSE TO
COMPLAINANT'S SECOND SET OF INTERROGATORIES AND REQUEST FOR
THE PRODUCTION OF DOCUMENTS by placing the same in the United States Mail, first-
class postage prepaid this 6th day ofJanuary 2006, addressed as follows
:
Mr. Christopher Grant
Mr. Scott Belt
Environmental Bureau
Scott Belt and Associates, PC
Assistant Attorney General
105 East Main Street
188 West Randolph Street
Suite 206
20th Floor
Morris, Illinois 60450
Chicago, Illinois 60601
Mr. Charles F. Helsten
Hinshaw & Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
One of the Attorneys for Community Landfill Co
.
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd
.
Attorney No . 37346
200 N. LaSalle Street
Suite 2810
Chicago, Illinois 60610
(312) 642-4414
SUBSRIBED T
.
SWORN To
Be .r me this
SCdayof
2006,
6~'1g
OFFICIAL SEAL
MARY KARSON
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES:03126109
VFRIBICATYON
T, Robert Pxuim, being first duly sworn on oath, depose and state as follows
:
1,
I am the President of Community Landfill Company, Inc,
2,
1 have read the foregoing' Respondent Community Landfill Company, Inc.'s
Response to Complainant's Second Set of Interrogatcties and
Request
for
the
Production of Documents and state that the answers therein arc true and correct to
the best of my knowledge and belief.
