P.O. Box 1389
This document utilized 100 recycled paper products
9120/2005
BRIAN WHrrE
9/20/2005
9/20/2005
BRIAN WHfi’E

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

CLERKS OFFICE

Case No. PCBNo. 03-191

OCT 042005

STATE OF ILLINOIS

Pollution Control Board

NOTICE OF FILING

TO:

All counsel of Record (see attached Service List)

Please take notice that on October 3, 2005, the undersigned filed with the Illinois

Pollution Control Board,

100

West Randolph Street, Chicago, Illinois 60601, City of Morris’

Response to Complainant’s Motion for Summary Judgment and Cross-Motion for Summary

Judgment

Dated October 3, 2005

HINSHAW & CULBERTSON LLP

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

Respectfully Submitted,

On behalf ofthe CITY OF MORRIS

This document utilized 100 recycled paper products

PEOPLE OF THE STATE OF ILLINOIS

Complainant,

vs.

)

COMMUNITY LANDFILL COMPANY,  

)

INC., an Illinois corporation, and the CITY OF

)

MORRIS, an Illinois municipal corporation,

)

Respondents.

)

By: Hin:

e of Attorneys

70415199v1 806289

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OCT O4~g~

PEOPLE OF THE STATE OF ILLINOIS,

)

inTE

ILLINOIS

)

Pollution Controj Board

Complainant,

)

vs.

)

PCBNo. 03-191

COMMUNITY LANDFILL COMPANY, INC.,)

an Illinois Corporation, and the CITY OF

)

MORRIS, an Illinois Municipal Corporation,

)

Respondents.

)

CITY OF MORRIS’ RESPONSE TO COMPLAINANT’S MOTION FOR-SUMMARY

JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT

NOW COMES the Respondent, CITY OF MORRIS, an Illinois Municipal Corporation,

by and through its attorneys, H1NSHAW & CULBERTSON LLP, and for its Cross-Motion for

Summary Judgment, pursuant to 35 Ill.Adm.Code 101.516, and Response to Complainant’s

Motion for Summary Judgment, states as follows:

THE COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT SHOULD BE

DENIED, AND SUMMARY JUDGMENT SHOULD BE AWARDED TO THE

CITY OF MORRIS.

THE CITY OF MORRIS IS NOT IN VIOLATION OF ANY LAW OR REGULATION,

AS THE CITY OF MORRIS IS NOT CONDUCTING A WASTE DISPOSAL

OPERATION.

The Complainant has alleged in its Complaint that the City ofMorris has violated

Section 21(d)(2) of the Illinois Environmental Protection Act (Act), as well as 35 Ill.Adm.Code

Sections 811.700(f) and 811.712 for allegedly failing to provide adequate financial assurance for

closure/post-closure activities at the Morris Community Landfill.

70452497v2 806289

Section 

21(d)(2)

of the Act provides that “nb 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)

(emphasis added).

3.

Furthermore, Illinois Administrative Code (Code) Section 811.700(0 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)

ofSection 21.1 of the Act, unless that person complies with the financial assurance requirements

of this 

part.”

35 Ill.Adm.Code §811.700(f) (emphasis added).

4.

As is made clear by the plain language of Section 21(d)(2) of the Act 

and

Section

811.700(f) of the Code, the requirements of those sections only apply if a person “conducts” a

waste disposal operation.

It is well-settled that words in a statute must be given their plain and ordinary

meaning. 

King v. First Capital Financial Services Corp.,

215 Ill.2d 1, 828 N.E.2d 1155, 1169

(2005).

6.

According 

to Black’s Law Dictionary, the plain and ordinary meaning of

“conduct” is “to manage; direct; lead; have direction; carry on; regulate; do business.” Black’s

Law Dictionary, 295

(6t~~

Ed. 1990).

7.

In this case, there is no question that the City of Moths does not “conduct” a

waste disposal operation, as it is not managing, leading, directing, 

carrying

on, regulating or

doing business as a waste disposal facility. Rather, the City of Morris is merely the owner of/fee

title holder to property that has been used for waste disposal activities for Community Landfill

Company (CLC).

2

70458497v2 806289

Community Landfill Company (CLC), not the City of Moths, is the entity that

“conducts” the waste disposal operations at Moths Community Landfill. In fact, CLC is

specifically listed as the operator of the Moths Community Landfill in the permits issued by the

IEPA, and, as such, has been expressly recognized by IEPA as the party who is conducting waste

disposal operations at the facility in question. Moreover, in his recent deposition testimony,

Brian White (the principal Affiant relied upon by the State of Illinois in support of its Motion for

Summary Judgment) specifically testified that: 1) permits issued by IEPA draw a distinction

between the owner and operator, 2) the City of Moths has never

been the permitted operator of

the landfill and 3) the City is not identified as the operator on the permits for the site in question.

See deposition of Brian White, pgs. 33-36 attached hereto as Exhibit B. Moreover, White

specifically testified that the owner of a facility does not necessarily have to post closure/post

closure financial 

assurance. See Id., pages

37-38. See Complainant’s Exhibits A and B.

Furthermore, CLC has admitted that, as the operator of the facility, it “manages”

(i.e. conducts) the day-to-day waste disposal operations of the facility. See CLC Answer, par. 5;

see also Black’s Law Dictionary, 295,

10.  Moreover, Mark Retzlaff, an employee of the Illinois Environmental Protection

Agency, and one of the State’s own Affiants, stated under oath that CLC operates the Morris

Community Landfill, and that CLC’s employees manage 

it. See Complaint’s Exhibit I, paras. 3,

7.

11.

Based on all of the evidence in this case, it is clear that the City of Morris does

not “conduct” a waste disposal operation, and, therefore, is not required to comply with Section

21(d)(2) of the Act or Section 811.700(f) of the Code.

70458497v2 806289

12.  The Complainant attempts to present evidence of “activities” that the City of

Moths has engaged in with respect to the Moths Community Landfill, such as applying for a

bond, participating in permit appeals and receiving royalties for waste dumped at the landfill, in

an attempt to establish that the City of Morris is actively conducting a waste disposal operation.

However, none of these “activities” establish that the City of Moths “conducts” a waste disposal

operation. Rather, these “activities” merely reflect the City of Moths’ interest in the landfill as

fee title owner of

the

land

upon which the facility is located 

and operated.

Moreover, the fact that the City does not “conduct” waste handling, waste management

or waste disposal activities as defined by Section 21(d)(2) of the Act or Section 811.700(1) is

more than adequately pointed out by one of the State’s 

own

Affiants, Helen Robinson.

Ms. Robinson’s Affidavit in support of the State’s Motion for Summary Judgment (which

is attached as Exhibit H to that Motion) is authored as proof that the Annual Report and

certification of Solid Waste Landfill Capacity for the 

Morris

Community Landfill facility was

not filed for the years 2003 and 2004.

As noted by Ms. Robinson in her Affidavit (and as further noted by the State in the text

of its Motion), in her capacity as Project Manager in the Waste Reduction and Compliance

Section of the IEPA Bureau of Land, she

was directly responsible for writing the annual 

report

solid waste management activities which take place within the State of Illinois (generally

referred to as the Non-Hazardous Solid Waste Management Landfill Capacity in Illinois Animal

Report).

As also alluded to both in Ms. Robinson’s

Affidavit and the text of the State’s Motion,

that report outlines solid waste management and disposal activity which occurs each year within

the State ofIllinois.

Interestingly enough, Ms. Robinson also acknowledges she is familiar with

70458497v2 806289

the Moths Community Landfill. Furthermore, notwithstanding the fact that she is responsible (at

least in part) for: (1) monitoring and reporting on the status of landfill activity in the State of

Illinois, and (2) by her own sworn admission, is familiar with the Morris Community Landfill

facility, in her Affidavit, Ms. Robinson does ~ allege that the City of Moths is required to

submit such annual certifications. Rather, Ms. Robinson merely alleges that: “CLC is required to

submit a certification entitled “Solid Waste Landfill Capacity Certification (“Certification”) on

an annual basis” (see paragraph 6 of Exhibit H attached to State’s Motion).

The City believes that Ms. Robinson’s lack of reference to any similar obligation on the

part of the City is both deliberate and telling. The City will submits that the reason Ms.

Robinson has failed to include any reference to the City in the Affidavit she has executed in

support of the State’s Motion for Summary Judgment is because she is full well aware ofthe fact

that the City does not “conduct” any waste handling, waste management or waste disposal

activities at the Morris Community Landfill site and, as such, is not responsible for any of the

reporting requirements she alleges in her Affidavit that CLC has failed to submit.

The substance of other Affidavits offered by representatives of IEPA in support of the

State’s Motion are equally as telling. For example, aside from various referencea to the fact that

the City of Morris is listed as the owner on various applications and reports that have been

submitted and permits that have been issued for the Moths Community Landfill in the past,

Brian White does not provide any definitive evidence that the City actually “conducts” waste

disposal operations at the Site as specifically required by Section 21(d)(2) of the Act anftSection

811.700(1). Moreover, in addition to the lack of specific reference to any facts that would

conclusively establish that the City “conducts” waste disposal operations at the Morris

Community Landfill, Brian White’s Affidavit only includes several general, conclusory

70458497v2 806289

statements to the effect that the City is responsible for obtaining closure/post closure financial

assurance for the landfill in question. However, as noted above, in his subsequent deposition,

Brian White testified that to his knowledge, the City has never operated the facility in question.

Moreover, the Affidavit of Mark Retzlaff(again one of the State’s own Affiants) asserts

that Community Landfill Company operates the landfill facility in question. Nothing is included

within Mr. Rctzlaff’s Affidavit which alleges that the City is involved in the active operation of

or otherwise “conducts” waste disposal operations at the facility.

Likewise, the Affidavit of Cristina Roque is devoid any facts whatsoever which would

demonstrate or establish that the City “conducts” waste disposal operations at the landfill facility

in question. In fact, none of the Affidavits submitted by IEPA representatives include any

factual basis whatsoever which establishes that the City of Moths conducts waste disposal

operations at the facility in question, all as specifically required by Section 5-21(d)(2) of the Act,

as well as specifically required by Section 811.700(1). In fact, a close reading of these Affidavits

reveals that the State’s Affiants step all the way around 

and

deliberately avoid 

any

reference to

the specific 

manner and form in which the City

of Moths allegedly “conducts” waste disposal

operations at the landfill; the seminal, touchstone basic requirement that must be met before a

party is liable for

posting of closure/post closure financial assurance under Illinois law.

13. The

Complainant’s assertion that the City of Moths is required to comply with

Section 21 (d)(2) ofthe Act

and Sections 811.700(1) of the Code merely because it is an owner of

the property on which the landfill is located would require a wholesale re-writing of those

sections. In effect, the Complainant is suggesting that the word “conduct” contained in Section

21 (d)(2) of the Act and Section 811.700(f) of the Code be replaced with the word “own.”

70458497v2 806289

14.

Clearly, it was not the intention of the Legislature for the Section 21(d)(2) of the

Act or its regulations to apply to entities that passively own land upon which waste disposal

operations are (or have been) conducted, as the plain language of these provisions requires that

an entity must actively “conduct” a waste disposal operation in order for those laws and

regulations to apply.

In keeping with the Act’s definitions of “owner” and “operator,” which make clear that it

is operators who conduct waste disposal operations, this Board has held that where a waste

disposal operation is owned and operated by separate entities, it is the operatorwofsuc4r sites, not

the owners, who are responsible for posting of the requisite financial assurance.

As noted by this Board in

People v. Wayne Berger and Berger Waste

Management,

PCB 94-373 (May 6, 1999), 1999 WL 304583:

The regulations and statutes at issue in an action for failure to maintain

financial assurance pursuant to Section 21(d) either specifically apply to

operators, or prohibit persons from “conducting a waste disposal operation”

unless certain actions are taken. citation omitted. An “operator” is defined in 35

Ill.Adm.Code 807.104 as “a person who conducts a waste disposal operation.”

Berger,

the owner of a landfill site, Wayne Berger, transferred title to the landfill to

Berger Waste Management (“BWM”), a corporation he had formed for that express purpose. 

Id.

Thereafter, Berger acted as the site’s operator, continuing to conduct operation&onmday-io-day

basis, while BWM was the site’s owner. Berger and BWM were eventually charged with a

number of violations with respect to the site, including a failure to provide the statutorily

required financial assurance for closure and post-closure care.

BMW argued that it was not liable under 21(d), because it was merely the owner, and

therefore was not the party with the obligation to provide financial assurance. The hearing officer

disagreed, and held both operator and owner (Berger and BWM) liable for all violations charged,

including the failure to provide financial assurance.

7

70458497v2 806289

On appeal, however, the Illinois Pollution Control Board rejected the hearing officer’s

finding with respect to Count I (the financial assurance violation), holding that “Berger was the

operator of the landfill, and BWM did not become the operator when it received title to the

property. Consequently, 

BWM is not

liable for the violations alleged in count I.” 

Id. at

*8. Thus

the PCB found that where there is an active operator of the site, it is only the operator, not the

uninvolved owner, who is liable for failure to provide the required financial assurance.

15.  It is not the role of this Board to re-write legislation, as the Complainant would

like this Board to do; rather, this Board must simply interpret the language as it exists_imSection

21(d)(2).

See King,

828 N.E.2d at 

1169,

citing In re Marriage of Beyer,

324 Ill.App.3d 305,

309-10, 753 N.E.2d 1032 (2001) (explaining that “a court

may not supply omissions, remedy

defects, annex new provisions, substitute different provisions, add exceptions, limitations, or

conditions, or otherwise change the law so as to depart from the plain meaning of language

employed in the statute”).

16.

In summary, and as set forth above, the plain language of Section 21 (d)(2) of the

Act and

Section 811.700(f) of the Code clearly does not require the City of Moths, who does not

“conduct” a waste disposal operation, to satisfy the requirements ofthose sections.

WHEREFORE, Respondent, CITY OF MORRIS, respectfully requests that this Board

grant

this Motion for Summary Judgment, as there is no genuine issue of material fact that CITY

OF MORRIS does not conduct a waste disposal operation and, therefore, is not in violation of

Section 21(d)(2) of the Act or Section 811.700(f) of the Code.

THE CITY OF MORRIS HAS COMPLIED WITH 35 ILL.ADM.CODE SECTIONS

811.706 

AND

811.717.

17.  Section 811.706 of Title 35(a) of the Illinois Administrative Code provides:

70458497v2 806289

The owner or operator ofa waste disposal site may utilize ~ ofthe mechanisms

listed in

subsections 

(a)(1) through (a)(10) to provide financial assurance for

closure and post closure care, and for corrective action at an MSWLF unit. 

* * *

The mechanisms are as follows:

A trust fund (see Section 811.710);

2)  A surety bond guaranteeing payment (see Section 811.711);

A surety bond guaranteeing performance (see Section 811.712);

letter of credit (see Section 811.713);

Closure insurance (see Section 811.714);

6)

Self-insurance (see Section 811.715);

7)

Local government financial test (see Section 811.716);

Local government guarantee (see Section 811.717);

Corporate financial test (see Section 811.719); or

10)

Corporate guarantee (see Section 811.720).

35 Ill.Adm.Code 811.706(a) (emphasis added).

18.

Despite the fact that Section 811.706(a) provides many mechanisms to provide

financial assurance, interestingly enough, the Complainant cites to only one such mechanism in

its Motion, Section 811.712, and alleges that the City of Moths has failed to provide financial

assurance in compliance with that one particular mechanism.

19.

However, the Complainant fails to acknowledge that the City of Moths can and

would provide financial assurance in compliance with the mechanism set forth in Section

811.717 (the local government guarantee) if required by law to do so.

20.  Section 811.717 provides:

An owner or operator may demonstrate financial assurance for closure, post-

closure, 

and

corrective action, as required by Section 21.1(a) of the Act and

811 .Subpart G, by obtaining a written guarantee provided by a unit of local

government. The guarantor shall meet the requirements of the local govermnent

70458497v2 806289

financial test in Section 811.716, and shall comply with the terms of a written

guarantee.

Terms ofthe written guarantee. The guarantee must be effective

before the initial receipt of waste or before November 27, 1997,

whichever is later, in the case of closure or post-closure care, or no

later than 120 days afterthe corrective action remedy has been

selected in accordance with the requirements of Sections

811.319(d) and

811.325. The guarantee must provide that:

Ifthe owner or operator fails to perform closure, post-

closure care or corrective action of a facility covered by the

guarantee, the guarantor must:

Perform, ~ pay a third party to perform, closure,

post-closure care, or corrective action as required;

Establish a fully funded trust fund, as specified in

Section 811.710, in the name of the owner or

operator.

35 Ill.Adm.Codc 811.71 7(a)(1) (emphasis added).

21.

As is clearly set forth in Section

811.71 

7(a)(1), a local government guarantor may

itselfperform or pay a third party to perform. A local government is not required to do both.

22. In fact, Blake Haths,

an IEPA employee who was a member of the Financial

Assurance Unit of the Solid Waste Section for many years and was personally responsible for

determining if the Moths Community Landfill had adequate financial assurance, testified that a

local unit of government may “perform or pay” pursuant to Section 8l1.717(a)(1). See

Deposition ofBlake Harris, p. 53, attached hereto as

Exhibit A (emphasis added).

23.  According to Mr. Haths, a unit of local government is not required to hire a third

party to perform. See id.

24.  If a local unit of government files a guarantee that it will perform if the operator

fails to do so, such a guarantee is sufficient financial assurance, and nothing more is required.

See Exhibit A, pp.

54, 56-57,

60-61, 67, 73. There is no requirement that the local unit of

70458497v2 806289

government also post a bond or some other alternate financial assurance, as the local government

guarantee itself is adequate. See Exhibit A, p. 

54,

56-57, 60-6 1, 67.

25.  In fact, to the contrary, the plain language contained in Section 811 .717(a)(1)

expressly allows a “unit of local government” to provide a written guarantee to perform closure

and post-closure care. Sec 35 ILCS 811.717. (Emphasis added).

26.  Based on the foregoing, it is clear that the City of Moths could comply with

Section 811.706 through the posting of local government guarantee to perform closure/post

closure activities as

they 

arise, a mechanism that is specifically allowed by Section 811.706, and

fully set forth in Section 811.717 if required by law to do so.

WHEREFORE, Respondent,

CITY OF MORRIS, respectfully requests that this Board

grant this Motion for Summary Judgment, as there is no genuine issue of material fact that CITY

OF MORRIS can and will comply with all applicable rules and regulations by providing

financial assurance in the form a local government guarantee.

COLLATERAL ESTOPPEL DOES NOT APPLY BECAUSE

NEITHER THIS BOARD

NOR ANY

COURT HAS EVER RULED THAT THE CITY OF MORRIS FAILED TO

COMPLY WITH 

ANY

REGULATION OTHER THAN SECTION 811.712.

27.  The Complainant vaguely and generally contends that collateral estoppel should

apply in this case because “noncompliance with 811.712 has previously been decided.” See

Complainant’s Motion, p. 10.

28.

The City of Morris agrees that the issue of the City’s compliance with Section

811.712 has been previously decided by this Board and the Illinois Appellate Court forthe 

Third

District. However, noncompliance with Section 811.712 is not the issue now presented in this

case. Rather, the issue now to be determined in this case is whether the City of Morris can post

financial assurance by using ~ of the mechanisms specified in Section 811.706, not just some

form of surety bonds that meet the requirements ofSection 811.712.

70458497v2 806289

29.  While this Board and the Third District Court held that the surety bonds obtained

by the City of 

Morris did not comply with Section 811.712, neither this Board nor any Court has

ever held that the City of Morris could not use another mechanism specifically allowed by

Section 811.706 to fulfill its financial assurance obligations.

In fact, this Board and the

Appellate Court focused exclusively on Section 811.712, because performance bonds were the

financial instrument directly in issue in that case. See Complainant’s Exhibits E and F.

30.

IEPA also focused exclusively on Section 811.712 as if it were the sole method of

demonstrating financial assurance. Mr. Haths specifically testified that he only considered

whether the City of Moths fulfilled its financial assurance obligations by examining the surety

bonds that it obtained, and merely found that those bonds violated Sections 811.700(f) and

811.712. See Exhibit A, pp. 37-38. However, Mr. Harris never advised the City of Moths that it

could have fulfilled its financial assurance obligations by providing a local government

guarantee. Exhibit A, p. 69.

31.  As even conceded by the Complainant in its Motion for Summary Judgment,

collateral estoppel only applies where: 1) the issue decided in the prior adjudication is identical

with the one presented in the instant matter; 2) there was a final judgment on the merits in the

prior adjudication; and 3) the party against whom estoppel is asserted was a party or a party in

privity with 

a party to the prior adjudication.

People v. Community Landfill Co.,

PCB 03-191,

slip op. at 4-5 (Oct. 16, 2003),

citing ESG Watts, Inc. v. IEPA,

PCB 96-191 and 97-210, slip op.

at 2-3 (July 23, 1998) (emphasis added).

32.  In this case, the first element of collateral estoppel cannot be met because the

issue presented here is not identical to the issue presented in the cases of 

Community Landfill

Company v. Illinois Environmental Protection Agency,

PCB 01-170 (Dec. 6, 2001) and

12

70458497v2 806289

Community Landfill Company v. Pollution Control Board,

331 lll.App.3d 1056, 772 N.E.2d 231

(3d Dist. 2002).

33.

In those case neither, this

Board 

and

the Illinois Appellate Court examined

whether the City of Moths met or could meet its financial assurance obligations under Section

811.717, which is the issue directly presented in this case. Rather, the Board and Court limited

their inquiries to whether or not the surety bond previously obtained by 

the Respondents met the

requirements of Section 811.712. See Complainant’s Exhibits E and F.

34.

Because the issue previously decided by this Board and Appellate Court was

clearly distinct from the issues presented in this case, collateral estoppel does not apply.

WHEREFORE, Respondent, CITY OF MORRIS, respectfully requests that this Board

grant this Motion for Summary Judgment, as there is no genuine issue of material fact that

collateral estoppel does not preclude CITY OF MORRIS from establishing that it can and will

comply with Section 811.706.

CITY OF MORRIS HAS NOT WILLFULLY, KNOWINGLY OR REPEATEDLY

VIOLATED ANY LAW OR REGULATION.

City of Morris is not in violation of Section 811.700(f).

35.

The Complainant alleges that the City of Morris has violated Section 811.700(f)

of the Board regulations by failing to have adequate, compliant financial assurance for closure

and post-closure care of parcels A & B of the Moths Community Landfill, and further

gratuitously alleges that this fact is “indisputable.”

36.

First, and most importantly, the City of Moths cannot, as a matter of law, be in

violation of Section 811.700(f), because, as noted above, that Section only applies to entities that

“conduct any disposal operation.” 35 Ill.Adm.Code 811.700(f). As specifically and thoroughly

70458497v2 806289

explained in Part A above, the City of Morris does not “conduct” a waste disposal operation but,

rather, simply owns property upon which a waste disposal facility is located.

37.  Therefore, Section 811.700(f) is inapplicable to the City of Moths.

38.

Moreover, the City of Morris has indicated that if required to post closure/post

closure financial assurance it would in fact comply with Section 811.706 (and, likewise,

811.700(f)) by posting a local government guarantee to “perform” leachate collection and

treatment activities for the landfill at its local POTW at no cost to the State, to unconditionally

reserve that capacity needed for 100 years to address this need, and to implement other

closure/post closure measures as the need arises over the applicable closure/post closure period.

39.  While the City of Morris has not yet filed the requisite form for the local

government guarantee, it has not done so only because: 1) it does not believe it is obligated by

law to do so, and 2) moreover, IEPA has advised the City that the form would not be accepted as

adequate financial assurance. However, as repeatedly explained by IEPA’s employee (whose

specific responsibility it was to determine the adequacy of financial assurance), the local

governnent guarantee alone would constitute adequate assurance. See Exhibit A, pp. pp. 54, 56-

57,

60-61, 67, 73.

40.  Therefore, even if Section 811.700(f) did apply to the City of Moths, which it

clearly does not, the City of Morris has complied with that Section.

WHEREFORE, Respondent, CITY OF MORRIS, respectfully requests that this Board

grant this Motion for Summary Judgment, as there is no genuine issue ofmaterial fact that CITY

OF MORRIS has not violated Section 811.700(f) of Title 35 ofthe Illinois Administrative Code.

City of Morris is not in violation of Section 21(d)(2) of the Act.

70458497v2 806289

41.

The Complainant asserts that City of Moths has violated Section 21 (d)(2) of the

Act by violating Sections 811.712 and 811.700(f).

42.

However, as explained in Part C above, Section 811.712 is now irrelevant, as that

Section focuses only on one specific mechanism allowed to be used to post financial assurance.

However, the City of Morris is able to provide financial assurance through other mechanisms- as

well (specifically, a local government guarantee), which the City of Moths is willing and able to

provide. Therefore, compliance with Section 811.712 is not at issue.

43.

Furthermore, as set forth above, the City of Moths cannot be in violation of

Section 811.700(f), as that Section only applies to entities that “conduct any disposal operation,”

and the City ofMorris does not, as a matter oflaw,

“conduct any disposal operation.”

44.  Finally, the City of Moths cannot be in violation of Section 21(d)(2) of the Act

because, like Section 811.700(f), Section 

21(d)(2) only applies to entities that “conduct any

waste-storage, waste-treatment, or waste-disposal operations.” 415 ILCS 5/21(d)(2). Because

the City of Moths does not “conduct any waste-storage, waste-treatment, or waste-disposal

operations,” but

merely 

owns

property on which a waste disposal facility is located, the City of

Moths is not in violation of Section 2l(d)(2).

WHEREFORE, Respondent, CITY

OF

MORRIS,

respectfully requests that this 

Board

grant this Motion for Summary Judgment, as there is no genuine issue of material fact that CITY

OF MORRIS has not violated Section 21(d)(2) of the Act.

City of Morris’ Alleged Violations Were not Willful, Knowing or Repeated.

45.

As set forth above, the City of Moths has not violated any applicable laws or

regulations; therefore, it certainly cannot be found to have done so willfully, knowingly or

repeatedly.

70458497v2 806289

46.

Nevertheless, even if this Board finds that the City of Moths has violated some

law or regulation, any such violation would not have been willful, knowing or repeated.

47.

Because the City of Moths is aware that its performance bonds have been found

to be inadequate financial assurance by this Board and the Appellate Court, the City of Moths

has attempted to provide compliant financial assurance for closure and post-closure care of the

facility in the form of a local government guarantee. However, the City of Morris’ attempts to

do so have been thwarted by IEPA’s incorrect interpretation of Section 811.717.

48.

Because the City of Moths is attempting to comply with all applicable laws and

regulations, any alleged violations should not be considered willful, knowing or repeated.

WHEREFORE, Respondent, CITY OF MORRIS, respectfully requests that this Board

grant this Motion for Summary Judgment, as there is no genuine issue ofmaterial fact that CITY

OF MORRIS has not willfully, knowingly and repeatedly violated any applicable law or

regulation.

II.

THE RELIEF REQUESTED BY THE COMPLAINANT SHOULD BE DENIED,

AND SUMMARY JUDGMENT SHOULD BE GRANTED FOR CITY OF

MORRIS.

49.

As set forth in Section 101.516 of the Board Procedural Rules, a party is entitled

to summary judgment “if the record, including pleadings, depositions and admissions on file,

together with any affidavits, show that there is no genuine issue of material fact.”

Ill.Adm.Code 101.516.

50.

In this case, all of the evidence shows that the City of Morris has not violated any

law or regulation and, therefore, is entitled to summary judgment. Therefore, this Board should

grant

summary 

judgment in favor of the City of Moths.

70458497,2 806289

WHEREFORE, Respondent, CITY OF MORRIS, respectfully requests that this Board

grant its Motion for Summary Judgment against the Complainant, PEOPLE OF THE STATE OF

ILLINOIS, and take such other action as the Board believes to be appropriate and just.

Dated: /b

/oc

Respectfully Submitted,

City of Morris

By: Hinshaw

HINSHAW AND CULBERTSON LLP

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

Charles F. Helsten

One of Attorneys

This document utilized 100

recycled paper products

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil

Procedure, hereby under penalty of peijury under the laws of the United States of America, certifies that

on October

3,2005,

she served a copy ofthe foregoing upon:

VIA OVERNIGHT MAIL

Mr. Christopher Grant

Assistant Attorney General

Environmental Bureau

188W. Randolph St., 20th Fl.

Chicago, IL 60601

Scott Belt

Scott Belt and Associates, PC

105 E. Main Street, Suite 206

Morris, IL 60450

VIA OVERNIGHT MAIL

Clarrisa Grayson

Mark LaRose

LaRose & Bosco, Ltd.

200 N. LaSalle Street, Suite 2810

Chicago, IL 60601

VIA OVERNIGHT MAIL

Ms. Dorothy 

Gunn, Clerk

Pollution Control Board

100 W. Randolph, Suite 11-500

Chicago, IL 60601

VIA OVERNIGHT MAIL

Bradley Halloran

Hearing Officer

Pollution Control Board

100 W. Randolph, Suite 11

Chicago, IL 60601

By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford, Illinois,

proper postage prepaid, before the hour of 5:00 P.M., addressed as above.

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

(815) 490-4900

70365631v1 806289

—Vs—

)NO.PCBO3—191

COMMUNITY LANDFILL

COMPANY,

INC.

an Illinois corporation, and the

CITY

OF MORRIS. an I.linoie

municipal

corporation,

Respondents

STATE OF ILtINOIS

Office of the Attorney General

E n’siro nmental

Bureau

188 West Randolph Street

20th Floor

Chicago, Illinois 60601

BY:

CHRISTOPHER .3.

GRANT

P.ssis tant

Attorney

General

A.ppearing on behalf of the

Complainant

LAROSE

BOSCO,

LTD.

Attorneys at Law

200 North I..aSalle Street

Suite 2010

Chicago, Illinois 60601

BY: HS. CLARISSA CUTLER GRAYSON

A,ppearing on behalf of the

Respondent, Community Landfill

Company.

Inc.

HINSHAW

£ CULBERTSON,

LLP

Attorneys at Law

100 park Atrenue

P.O. Box

1309

Rockford,

Illinois

61105

my:

RICHARD

PORTER

A.ppearing on behalf of the

aespondent, the City of Morris

Exanination by Hr. Porter

Examination by Ms. Graysori

Examination by Mr. Grant

Re—Examination by Hr. Porter 

Re—Examination

by Mr. Grayson

Re—Examination

by Mr.

Grant 

EXHIBITS

Slake

Harris

Exhibit

Number i

. .

(Exhibit

retained

by Mr. Porter)

BLAKE OLIN HARRIS

8—25-04

2

BEFORE

THE

ILLINOIS POLLUTION CONTROL 

BOARD

3

PEOPLE OF TI-XE STATE OF ILLINOIS,

5

Complainant

6

INDEX

3

69

. .

—

0

9

1-1

13

14

20

22

23

1

2

S

S

S

9

21

24

Discov.ery deposition of 

BLAKE OLIN HARRIS

taken at the instance of the Respondent, the

City of Morris. on the 25th day of August,

2004, at the Illinois En~ironmenta1 Protection

Agency,

1340 North Ninth Street, Springfield,

Illinois 

•

before Sandra K. flames, CSR and

Notary Public,

pureuant

to notice,

the

applicable

rules of the Illinois

Code of Cit,il

Procedure and the Illinois Pollution Control

Board.

CSR NO. 084—002423

APPEARANCES

‘1

BLAKE OLIN HARRIS

called as a witness herein, for discovery

purposes, at the instance of the Respondent,

having been first duly sworn on his oath, was

examined and testified as follows, to-wit:

EXAMINATION BY

MR. PORTER:

Good

morning.

Can you

state

your

name for the record, please.

A. Blake Olin Harris.

Let the record reflect this is the

deposition 

Blake Olin Harris taken pursuant

to all of the applicable rules of the Illinois

Code of Civil Procedure and the Illinois

Pollution Control Board.

Mr. Harris, can you give me your date of

birth?

A. 11-20-69.

What was the

- -

what is your address?

A. 2129 South Lincoln Avenue,

Springfield, Illinois.

How long have you lived there?

A. Three and a half years.

Q. How long have you lived in

Springfield?

A. Most ofmy life, 32 years.

What was the last year of education

that you completed?

A. I got my Bachelor’s in ‘92. I have

taken Master’s level classes up through, I

think it was ‘97.

Did you acquire any degree other than

a Bachelor’s Degree?

A. No.

Where did you get your Bachelor’s

Degree from?

A. Illinois College, Jacksonville.

What was that degree?

A. Business administration.

You said you have taken Master’s

level classes since or up to 1997. Did I hear

that correctly?

A. Yes.

What classes did you take?

A. Well, I started on environmental

studies degree, Master’s at S.I.U.

Edwardsville, did not complete that. I have

taken other environmental Master’s classes at

the University of Illinois Springfield since

then.

Are you still taking

- -

strike that.

You haven’t had any classes since 1997

though, is that right?

A. No.

And so how far are you from acquiring

a Masters Degree, ifyou know?

A. Quite a bit. I don’t know.

You have no intention ofacquiring a

Master’s Degree at this time?

A. Probably not.

Other than your business

administration Bachelor’s, any other secondary

education of any type?

A. Like seminars, that kind of stuff?

Anything.

A. Okay, financial analysis seminar

about a year ago.

Q. What is your present occupation?

A. I work for the Financial Assistance

Infrastructure Section as an accountant. We

do low interest loans for communities doing

water treatmentimprovement or water

distribution.

Do you have a title?

A. Accountant is the title.

You work at the Illinois

Environmental Protection Agency, correct?

A. Yes.

MR. GRANT: Just to clarify you

might want to, you work for the Bureau of

Water now.

A. Bureau of Water, yes.

How long have you worked for the

Bureau of Water?

A. Eight months.

Prior to that what was your job at

the IEPA

strike that.

How long have you been at the IEPA?

A. Since ‘93.

When did you graduate from college,

‘92?

A. ‘92.

So, was this your firstjob out of

college?

A. I had an internship with Bureau of

Water at the IEPA prior to that.

Then after your internship you then

began your employment at the IEPA, and what

was that?

A. I worked for Bureau of Air doing

vehicle emissions, basically the office work,

the office component of the emission tests

like up in the Rockford area, those areas. We

reviewed the results that would come in from

emissions tests. I did that for two months,

and then started working in the Leaking

Underground Storage Tank Section as a project

manager.

How long did you work as a project

manager for the LUST Section?

A. Little over two years, and then I

started doing the technical billing reviews

for the Accounting Section that did the

reimbursement for LUST claims, like if you

had a release at an underground storage tank

site.

You said you did the technical

billing reviews. When did you start doing

that for the LUST Section?

A. I started doing that in September of

‘951 think it was.

When you say technical billing

reviews, were you checking to be sure that

the bills that entities were submitting to

the LUST fund were accurate? What did your

job entail in technical billing reviews?

A, It was basically what a project

manager could do, I understood the technical

side from being a project manager, and you

would review the reports that were submitted,

and totally separate from that you would

receive claims in the Accounting Unit, and I

was comparing what was actually reported as

being done on the site to what was being

billed from the LUST fund. So, you would

determine ifthey were legitimate costs, if

they were billing 200 hours for a one page

report sort of thing.

You said if they were billing, the

project managers?

A. No, they being the consulting firm

who did the work for the owner operators of

the stations.

So, you started that in ‘95?

A. Yes.

And you continued that for two years?

A. No. I started doing the technical

bill reviews for the Accounting Section from

‘95 up through February of ‘99.

Okay. So, through February of ‘99 am

I correct in indicating you had absolutely no

experience with financial assurances for solid

waste facilities?

A, Correct,

What did you do after ‘99?

A. After February of ‘99 I started

working doing the financial assurance.

What department were you with at that

time?

A. It was called the Solid Waste

Section.

Solid Waste Section of what?

A. Of the Bureau of Land.

Who was your immediate supervisor?

A. At the time it was Hope Wright.

What was her title?

A. I don’t know Hope’s title. I am not

sure what her title was.

What was your title in the Solid

Waste Section as of February of ‘99?

A. I think it was called accountant

trainee. I did that for six months of

probation, and then went into accountant after

that.

Now, you are not a certified public

accountant, correct?

A. No.

So, in the terms of the IEPA what

does accountant mean?

A, It seems to vary widely depending on

your job. It always involves a financial

component.

Okay. How many accountants are there

under the Bureau of Land, do you know?

A. I don’t know.

What’s your best estimate?

A. Pardon.

What’s your best estimate?

A. Best estimate I would say there is

probably 20,

Q. And how long were you accountant

trainee or accountant for the Bureau of Land?

A. From February ‘99 through January of

2004.

Your title for that entire time was

either accountant trainee or accountant,

correct?

Correct.

And then inJanuary of 2004 you moved

the Bureau of Water, is that right?

Yes.

onto

Did you receive any special

training

- -

strike that.

You have had some role in regard to the

Community Landfill Company, Incorporated and

the landfill that it operates, is that

correct?

A. Yes.

What has your role been in general

terms?

A. It is one of the many sites I

reviewed, I did a financial review on when I

worked for the Financial Assurance Section of

the Solid Waste, or the Unit of the Solid

Waste Section.

And the Financial Assurance Section

14

of the Solid Waste Section you worked at that

since February of ‘99, correct?

A. Correct, right.

And what training did you receive

from the Financial Assurance Section of the

Bureau of Land?

A. I was trained by, well, combination

of Hope Wright, my supervisor, and John

Taylor,who had previously been a financial

assurance reviewer for many years. In

addition to that I reviewed technical manual

of USEPA training of previous people.

How long did your training last from

Hope Wright and John Taylor, from when to

when?

A. Well, training is sort of ongoing

here at the Agency. I don’t know when it

ended exactly.

Q. Was there a formal training program

when you first started?

A. No.

So, when you were an accountant

trainee for the Financial Assurance

Department, there was no specific class,

or article, or document that you used in

order to become familiar with what the job

entailed?

A. Just doing reviews on the individual

facilities, and working with Hope and John,

and comparing that to the regulations and the

Environmental Protection Act. That was the

training.

How many facilities did you work on

when you were within that Department?

A. Hundreds, I couldn’t give you an

exact number.

Of those hundreds of facilities did

you ever have any experience with Section

811.7 17?

A. I would have to take a look at that

section.

When I tell you 811.717, does that

ring a bell as to

A. It is within the financial assurance

regulations,but I don’t know that specific

one.

You don’t know that as the section

that involves a local governmental unit

15

guarantee, is that correct?

A. That sounds right. I haven’t looked

at the regulations for financial assurance for

almost nine months.

In the four years that you were in

that department

strike that

- -

is that

7

right, was it four years or five years?

A. Almost five.

In that five years that you were

in that Department, did you ever have any

experience with a local governmental guarantee

to comply with financial assurances as opposed

to some other method?

A. I believe there were a couple

facilities that used a local government

guarantee.

Which ones?

A. I don’t know the names of them. I

don’t remember them.

When was it?

A. Somewhere over that five years. I

don’t know. The local government guarantee is

pretty uncommon. That’s why I say I don’t

really remember the facilities.

You mentioned that you dealt with

hundreds of different facilities and the

financial assurances that they posted,

correct?

A. Right.

How many hundreds? Are we talking

900, or are we talking 100?

A. I don’t know the total number of

facilities between hazardous waste,

underground injection wells, tires, I don’t

know the total number.

And you understand all those to be

facilities as defined by RCRA and the regs, is

that correct?

A. Yes.

And so what is your, give me your

best estimate. Is it closer to 900 than 100?

A. I seem to recall on our database

there was over 800 facilities.

And did you review the financial

assurances at one point or another of all

those facilities?

A. Probably not all of them, because it

was notjust myself.

7

How many other accountants were there

within the Financial Assurance Department?

A, Over that period of time there was

John Taylor, Greg Yurevich. I think that was

it over that period of time.

At any specific period of time how

many accountants were employed? I understand

there were three of you over the five years,

but at one particular time how many

accountants were there?

A. At no time were there more than two.

So, would it be safe to say that you

must have reviewed at least half ofthe 800

facilities of which you recall, correct?

A. Yes.

And so, out of those at least 400

facilities you only have a recollection of two

ever using the provisions of 811,717, is that

right?

A. Correct.

So, it is safe to say that it was

highly unusual for that section to be used,

correct?

A. Yes.

And you had no specific training

regarding that section, correct?

A. Other than reading the regulations,

right.

And the only time you would ever read

the regulations is when someone would attempt

to use that section, right?

A. Right, and the forms which are also

part of the regulations, you would have to

review those as well.

So, am I correct that you probablyin

that four years onlyreviewed that regulation

twice?

A. Probably, but that regulation is very

close to a financial test in almost every

respect from what I recall, and I have looked

at many financial tests. There are certain

ratios that have to be passed.

Right. I mean the regulation in

order to post the guarantee part of that is

that you have to meet the financial test

aspect of 811.716, correct?

A. I don’t know the section again, but

you have to have tangible net worth of six

times your cost estimate or more, and there is

various other ratios that have to be passed

that are bond ratings.

Other than what we have already

spoken about did you have any training

regardingtheuseof8ll.717?

A,No.

As you sit here today you cannot

recall what other facilities attempted to use

that section?

A. No.

Correct?

A. Correct.

~ Are you aware of whether or not the

Bureau ofLand Financial Assurance Section

approved the use of that section for any other

facilities?

A. lam not sure.

0. Is there anything that you can review

that would refresh your recollection on what

facilities attempted to use it, and whether or

not the Bureau allowed it?

A. I would have to talk with a

supervisor of that section and see what they

had listed in their databases, communities

using that, and actually look at those to give

you an accurate answer.

Q. So, there is a database where you

could somehow determine if indeed that has

ever been used?

A. Yes.

Who would have access to that

database presently?

A. Presently I think the acting

supervisor of that unit is Greg Bouillon. I

don’t know how to spell his last name.

Are you affiliated with any political

party?

A, No.

What do you understand the major

issues to be in the case that I am here to

talk to you about today?

MR. GRANT: I am going to object, and

ask for a more specific question. He has been

named as a witness.

Unless your Counsel tells you not to

answer

MR. GRANT: I am sorry, Blake.

15

21

17

A. Please, can you restate the question.

What do you understand the major

issues to be in this case?

A. I know ofsome permit issues, but

primarily financial assurance, I believe.

What about financial assurance do you

understand to be an issue?

A. I believe they have inadequate

financial assurance currently.

Who?

A. The landfill, Morris Community

Landfill.

0. And how did you come to a belief that

there was inadequate financial assurance for

the Morris Community Landfill?

A. I have reviewed the permit, and I

have reviewed the financial assurance they

have submitted, and it does not satisfy the

regulations.

When did you last review the permit?

A. It has been a couple years at least.

0. When did you last review the

financial assurance that was posted or

attempted to be posted?

A. Back in February I looked at the

bonds that were posted.

Have you looked at anything other

than bonds that were previously posted

regarding this case as to financial assurance?

A. Yeah, at one point I did.

What did you see other than bonds

being posted?

A. Do you mean before the bonds were

issued?

At anytime.

A. I think at one point there was a

letter of credit or more that were issued for

this. At one point there was a trust first.

0. My understanding is that

- -

strike

that.

Did you prepare at all for your deposition

here today?

A. I looked at stuff yesterday on this.

What stuff did you look at?

A. Some of the bonds, the bonds and the

riders to those bonds.

So, earlier when you said you had

been, it had been since February that you

looked at the bonds, that was inaccurate, is

that correct?

MR. GRANT: I object to the

characterization. I am going to object to the

question.

A. Could you state the question again,

please.

I thought you just told me a few

minutes ago that you hadn’t seen the bonds for

quite sometime.

MR. GRANT: I am going to object to

the question. I think that you are harassing.

A. No.

MR. GRANT: I think he has answered

every question honestly and straightforward

that you have asked.

A. The permits, I have not looked at

those permits in a while. I don’t know an

exact date. When you said the financial

assurance, I said I looked at those bonds in

February.

And you also looked at them

yesterday, is that correct?

A. Well, I looked at photocopies from

my own personal file that I have on this

site yesterday. I didn’t look at the bonds

themselves.

Why did you think it was important to

look at the copies ofthe bonds yesterday?

A. I just wanted to refresh my memory.

I haven’t looked at this facility for a long

time.

So, there was nothing in particular

about the bonds that you felt relevant to the

present lawsuit, is that correct?

A. Well, no, I think the bonds, don’t

they tie into this? I mean you’re talking

about financial assurance and is it adequate.

0. My question is why you thought it

was important to look at those bonds.

A. To refresh my memory, because I

haven’t looked at those bonds for a long

time.

Okay. Other than the bonds did

you look at anything else?

MR. GRANT: What lime are we

talking about here? Talking about back in

February, or talking about when he was

11

14

24

evaluating the permit, or are we talking about

yesterday?

I am talking about in preparing for

your deposition. Other than looking at the

bonds, did you look at anything else?

A. I looked at some ofthe testimony

from this deposition back however many years

ago.

What exactly within the testimony of

your deposition did you review?

A. Majority ofit. I don’t know. I

read through it. Looked at the background,

looking for dates on when I switchedjobs, and

that kind of stuff.

Q. Was there anything within that

deposition that you felt was particularly

relevant?

A. I guess the bond issue, the 570

circular. Ithought that was relevant.

Other than that?

A. No.

Did you look at any other documents

other than your dep, previous dep testimony in

an underlying case,and the bond documents?

Otherthan those two documents did you look at

anything else?

MR. GRANT: I am going to ask to

clari~r.Are you talking about inpreparing

for the deposition?

0. Right now all my questions are with

regardto preparing for your deposition, okay.

MR. GRANT: All right.

Until we move onto another topic.

A. So, the bonds I looked at, orthe

copies of them, the riders to those bonds, and

the previous deposition.

Did you review any submissions from

the Community Landfill Company, Incorporated

to the IFFA?

A. I don’t know. What do you mean by

that?

0. Did you review any documents that

were submitted by Community Landfffl Company,

Incorporated to the EPA?

A. I am not sure if those, the copies of

the bonds had maybe cover letters or something

from them. They might have. I don’t

remember.

Did you ever review any cost

estimates from

- -

strike that.

When you were preparing for your

deposition, didyou review any cost estimates

from Community Landfill Company, Incorporated?

A.No.

Did you review any cost estimates

from any consultants concerning the Morris

Landfill?

A. No.

0. What do you

- -

excuse me for having

come into this case somewhat late

- -

what do

you refer to the Morris Landfill as? Is that

what you guys call it?

A. I have heard it called Morris

CommunityLandfill or CLC.

0. Throughout this deposition I will

call it Morris Community Landfill, okay?

A. Okay.

So, other than your deposition and

the bond documents, you reviewed nothing else

in preparation for your deposition today,

correct?

A. Correct.

Now, my understanding is you met

with Counsel before this deposition, is that

right?

A. Yes.

0. That meeting took place when?

A, Back in February, I think it was.

MR. GRANT: We are going to have to

clarify, Counsel. There is internal JEPA

counsel, and there is me.

Back in February who did you meet

with?

A. Bruce Kugler.

Did anybody else attend that meeting?

A. No.

0. The purpose of the meeting was to

prepare for this deposition?

A. It was some interrogatories that

I was just giving information to Bruce,

regarding like bonds or answering questions

like that.

How long did that meeting take?

A. I don’t recall, a couple hours maybe.

Other than that one meeting with Mr.

Kugler have you met with any other counsel in

19

preparing for yourdeposition today?

A. I met with Bruce and Chris Grant

yesterday.

0. Did anybody else attend that meeting?

A. No.

Q. Where did that meeting take place?

A. In this room.

How long did that meeting take?

A. Maybe 45 minutes.

Other than your deposition and the

bonds did you review any other documents in

either of those meetings?

A. I can’t honestly tell you from back

in February. I don’t remember what we

reviewed at that time.

0. Okay. Yesterday did you review any

other documents other than the bonds and your

dep?

A. I looked at the bonds and the riders

to those bonds,

Q. You did not look at your deposition

yesterday?

A. I looked at the deposition too.

Q. Other than the bonds, the riders of

the bonds and the deposition, anything else

that you looked at yesterday?

A. I don’t believe so.

You did not review the regulations

under 811.700, is that right?

A. Actually let me correct something.

Joyce Munie was also at the meeting yesterday,

and I did have to ask her for a copy of the

regulations to look at one of these parts,

because I haven’t looked at it in, you know,

seven, eight months. So, I did look at 8111

think it was 700F.

0. Why did you look at 811.7001’?

A. That’s where the financial assurance

regulations start, I believe.

Well, assurance regulations starf at

811.700, correct? Why did you particularly

look at F?

A. Fjust comes to mind. I may be wrong

about that. I would have to look at it.

Well, so you don’t recall

specifically

- -

well, here, let me show you

811. 700F.

MR. GRANT: Do you know how current

this is? These things do change.

MR. PORTER: I printed it off

yesterday. Current enough?

MR. GRANT: I don’t think they have

taken any action since then.

A. I think it was F.

That’sjust the general section that

says someone has to post financial assurance,

correct?

A. Correct.

Other than that one section of

81 1.700F did you review any other sections

within those regulations?

A. There is another section I looked at.

I will have to look at the regulations to tell

you though.

MR. PORTER: Off the record.

(Whereupon there was then had an off

the record discussion.)

MR. PORTER: Back on the record.

After having reviewed 811.700 et

seq., you have now seen or refreshed your

recollection that you also reviewed 811.707

yesterday, is that correct?

A. Yes.

0. Why did you review 811.707?

A. Because this facility has multiple

performance bonds issued, and mechanisms

guaranteeing performance cannot be combined

with other mechanisms.

That’s your understanding of what

811.707 provides?

A. Yes.

Q. Isn’t it true that 707 actually

provides an owner operator may satisfy the

requirements of this sub-part by establishing

more than one financial mechanism per site?

A. They may unless those guaranteeing

performance. See the part that says except

those guaranteeing performance.

Show me what it is you are talking

about.

A. Except the mechanisms guaranteeing

performance rather than payment may not be

combined with other instruments. So, if you

have a performance bond, it cannot be combined

with any other instrument.

Why did you believe that that section

1

20

was important to review in regard to this

case?

A. Because they have three performance

bonds.

Q. Who has three performance bonds?

A. CLC or Morris Community Landfill.

So, it is your understanding there

are presently pending three performance bonds,

is that correct?

A. Correct.

And do you think that that somehow

violates 811.707?

A. Yeah.

Why?

A. Because they have combined three

performance instruments.

Well, the statute

- -

strike that.

The regulation nowhere indicates that

performance instruments cannot be combined,

does it?

A. Except the mechanisms guaranteeing

performance rather than payment may not be

combined with other instruments.

4. The other instruments referencing

instruments other than performance

instruments, is that correct?

A. No, meaning one instrument is a

performance bond. When you are combining that

5

with another instrument, that’s another

performance bond in this case.

4. Well, where does it say that in the

regulation?

A. I can read it to you again. It says

except the mechanisms guaranteeing performance

rather than payment may not be combined with

other instruments. A performance bond,

whatever number it is, call it number one, is

an instrument. You have performance bond

number two. Here is another instrument.

4. No. It is the same class of

instrument, correct?

A. But they don’t say class of

instrument. You may not combine a performance

bond with any instrument. An instrument is

one bond. An instrument is another bond.

Actually doesn’t the statute provide

that except the mechanisms, plural,

guaranteeing performance rather than payment

may not be combined with other instruments,

plural? So, wouldn’t you agree that the

statute

- -

strike that

- -

the regulation in

and of itself contemplates you can have plural

multiple performance bonds?

A. I don’t interpret that that way.

4. What possible interpretation could

there be for the word mechanisms in plural?

A. I don’t interpret that that way.

4. Is that your understanding of the

purported violation of this landfill that they

have combined performance bonds?

A. No, This is just something separate.

The violations with the bonds are because they

are not listed on the 570 circular, and they

are currently not approved by the Illinois

State Department of Assurance. Those are both

components of the performance bond and the

payment bond requirements for 811.

4. Okay.

A. So, this is something separate. I am

just telling you this is a section I also

looked at yesterday.

4. And other than this section and the

one we referenced before you looked at no

other sections, is that correct?

A. That’s correct.

4. Now, did you review any statutes?

A. I don’t

no.

Procedurally what is your

understanding of how we got to where we are

today in this case?

A. There was a permit issued based on

financial assurance that was later determined

to be inadequate. We still don’t have

adequate financial assurance after however

many years that’s been, and that’s a

requirement of the permit.

4. Did you or your Department at the

time requestthat the Attorney General file

the instant lawsuit?

A. I don’t recall.

Do you know how it came about the

instant lawsuit was filed?

A. No.

You were not involved in any

conversation with the Attorney General’s

Office about filing this lawsuit, is that

correct?

A. Not that I recall.

4. I am correct that you were the

individual that was responsible for

determining whether or not financial

assurances

- -

strike that.

I am correct that you were the individual

that was responsible for determining whether

or not that financial assurance regulations

had been violated, correct?

A. Correct.

4. At some point did you ever make a

determination in this case that there was some

violation of the financial assurance

regulations?

A. Yes.

4. What regulation did you believe was

violated?

A. I have to look at the section again,

but it is the section pertaining to the bonds.

So, it would be 811.700F, but 811.712 is the

section that talks about the performance

bonds.

4. Okay. Otherthan 811.700F and 712,

at no time have you concluded that any other

section of the regulations was violated, is

that correct?

MR. GRANT: I object to the question.

I don’t think he testified to anything like

that.

MR. PORTER I am not trying to

characterize any previous testimony.

A. Could you state your question again,

please.

(Whereupon the reporter then read the

requested testimony.)

A. No, I don’t believe any other

sections or regulations.

4. So, my statement is correct you don’t

have any opinion that any other section of the

regulations was violated, correct?

A. Of the financial assurance

regulations, that’s what you’re talking about?

Right.

A. Yes, you are correct.

And now let’s broaden it from

there. Do you have an opinion that any other

enviromnental regulation of any type has been

violated?

A. Possibly with the permit. I don’t

know what that regulation is though.

You don’t anticipate ever providing

any testimony on some permit violation,

correct?

A. No,

You don’t have any intention of

providing such testimony, correct?

A. No.

MR. GRANT: I object. We haven’t put

together our case yet. We have disclosed him

as a witness in the case. So, we are going to

reserve the right to amend that ifwe need to

later on.

Well, as you sit here today you

don’t know of any other section other than

the two you just mentioned of 35 fflinois

Administrative Code that has been violated,

correct?

A. Correct.

4. You don’t know of any other

environmental statute or regulation that in

your opinion has been violated, correct?

A. Probably the Act, probably the

Environmental Protection Act.

4. What section of the Act do you have

an opinion has been violated?

A. I would have to look at that section,

something in Z1.

4. Are you talking now about the section

that references financial assurances need to

be posted, and the regulations will be drafted

by the EPA?

A. Right.

4. Perhaps that’s 21.1A?

A. Yeah, I would have to look at it.

That could be.

4. Other than the section

- -

strike

that.

Am I correct that as you sit here today

you don’t know even the section number of the

Illinois Compiled Statutes that references

financial assurance, correct?

A. No. I would have to look at them

again.

But other than that possible section

in the Illinois Environmental Protection Act

15

19

you have no other opinion that any other

section has been violated, correct?

A. Correct.

4. At no time in preparation for your

deposition did you review 811.715, 16, or 17,

is that right?

A. I don’t believe so. I may have

back in February looked at it. I don’t

remember,

4. You understand that there are other

methods that an owner or operator can meet

financial assurances other than 811.712,

correct?

A. Yes, correct.

4. As a matter of fact, would you agree

that the purpose of Section 21.1A of the

Illinois Environmental Protection Act and

sub-part G of the regulations or the 811.700

regs is to assure that resources are available

to perform closure and post closure

activities, correct?

A. Correct.

To your knowledge are there any

closure or post closure activities that my

client, the City of Morris, or the operator,

the Community Landfill Company, Incorporated,

have failed to perform?

A. I don’t know.

4. You are not aware of any such

activities that have not occurred, correct?

A. lam not aware.

No one has ever told you that they

failed to perform some closure or post closure

activity, correct?

A. No.

4. My statement was correct?

A. Your statement is correct.

To your knowledge what different ways

could the operator and the owner meet the

financial assurance requirements ofthe Act in

the regs?

A. If they could pass the ratios or the

bond rating, possibly they could use a local

government guarantee. They could do a letter

of credit, trust fund. I think that’s about

it, performance or payment bond.

Anything else?

A. I would have to review the

regulations to see all of the different ones

they could use. Oh, insurance, I am sorry,

that’s another one.

Anything else to your knowledge?

A. No.

At any time have you done any

analysis ofwhether or not the City of Morris

meets the financial test?

A. No, I have not.

4. You understandwhat I meant by the

financial test?

A. Uh-huh.

Is that yes?

A. Yes, that’s yes.

4. What is your understanding of the

financial test as it relates to the 700

regulations?

A. Financial test you are calling the

corporate guarantee I am assuming, right?

Ijust want to know what you

understand the financial test to be.

A. Financial test is showing you pass

certain ratios, that you can afford to do

closure. You have so much tangible net worth

or strong enough bond rating that you can pass

the financial test, and provide some guarantee

that you can provide closure and post closure

care.

And to your knowledge the City of

Morris meets that financial test, correct?

A. I don’t know,

Why haven’t you performed that

analysis?

A. To my knowledge they have not

submitted anything to try to pass those

ratios.

4. Well, isn’t it true that at one point

the City offered to post the guarantee

referenced in Section 717?

A. I don’t know about that,

4. At some point isn’t it true that you

offered an opinion that 717 could not be used

by the City of Morris?

A. I don’t remember.

You don’t recall ever doing that,

correct?

A, Correct.

4. So, as you sit here today you have

17

no reason to believe that the City of Morris

could not use Section 717, which is the local

governmentguarantee section, correct?

A. Correct.

You understand

- -

strike that.

Let me show you a document that I am going

to have marked as Exhibit One,

(Whereupon said document was duly marked,

for purposes of identification, as

Blake Harris Exhibit Number One, as of

this date.)

4. Let me show you the document I have

had marked Blake Harris Exhibit Number One

with today’s date on it. Have you seen that

document before?

A. I don’t recall if I have seen this

before or not.

4. Would you agree that that is the cost

estimate concerning the landfill at issue?

A. It appears to be a cost estimate.

4. Did you not review that cost estimate

prior to this deposition, correct?

A. Right.

4. Do you know whether or not that cost

estimate was ever approved by the Financial

Assurance Department of the Bureau of Land?

A. Financial Assurance Department does

not approve cost estimates.

4. Do you know if the Financial

Assurance Department ever objected to that

cost estimate?

A. I don’t know. They don’t review

them. So, I don’t know why they would.

4. Who does review the cost estimates?

A. Permit Section.

4. Do you know if that costestimate was

ever objected to, denied, or even responded to

14

by the Permit Section?

A. I don’t know.

4. Do you have any understanding of how

much financial assurance was supposed to be

posted by the owner or operator?

A. I believe it was something around

17 million, I would have to look at the

individual permits to tell you though.

You mentioned that you reviewed the

permits before your dep, correct?

MR. GRANT: I don’t think he said

that. I think that’s mischaracterizing his

testimony. He reviewed the bonds and bond

riders I believe he said,

February you reviewed the permits, or

am I remembering that incorrectly?

A. I don’t remember if we reviewed the

permits at that time or not.

You don’t

strike that.

How did you come to the conclusion that

17.8 million dollars was the amount of

financial assurance that was supposed to be

posted?

A. Itwas a number that the Permit

Section would have given me, or I could have

determined looking through the permits, either

way.

4. Do you know if the operator,

Community Landfill Company, Incorporated, or

the City of Morris ever submitted a cost

estimate that total, 17.8 million dollars?

A. No, I haven’t seen the actual cost

estimate,

4. So, Exhibit Number One, that may have

been the first time you ever saw that

document, is that correct?

A. Today, yes.

Well, at any time.

A. At any time, I don’t recall seeing

this document ever before.

Okay. So, ifI understand when you

were doing your job as accountantfor the

Financial Assurance Department, you would just

accept what the Permit Department would tell

you the level of financial assurance needed to

be, correct?

A. They would say this is the amount

that we need. Here is the permit that it is

coming from, We would look at the permit,

find that section, and then of course,

document that, and then compare what they

provided in financial assurance to that

amount.

Do you know whether or not the actual

closure costs

- -

strike that.

Did you ever learn that there were two

different parcels at issue in regard to the

landfill?

A. At one point I found out there were

15

two different parcels.

When did you learn that?

A. Sometime year or two ago. I don’t

recall the exact time.

4. And there was a Parcel A and a Parcel

B, is that right?

A. That’s what I have heard.

4. Do you know if those parcels were on

the east and west side of a specific road?

A. I do not know.

4. I take it then you do notknow

whether or not the total cost estimate for

Parcel A of 2.27 million dollars is accurate

or not as reflected by Exhibit One, correct?

A. Correct.

4. You also don’t know if the total cost

17

estimate for Parcel B is $4,807,000.00, is

that correct?

A. I don’t know.

4. Did you ever learn whether or not one

21

of these parcels had some substantial space

available?

A. I don’t know whether it did or not.

Did you ever learn that one ofthese

parcels only accepted clean construction

debris?

A. Don’t know that.

Did you ever learn

- -

strike that.

I take it then you have no idea how full

Parcel A is and Parcel B is?

A. Correct. I have no idea about that.

And you never had any idea about

that, correct?

A. Right.

Now, is it your understanding that

cost estimates assume that a landfill will be

completely filled?

A. Cost estimates vary over time. I

don’t know. I don’t review the cost

estimates. I imagine at one point they would

assume completely being filled.

Do you know whether or not an actual

cost will be less if a landfill is never

filled?

A. Yes, I don’t know.

You have absolutely no role in

determining

- -

strike that.

You have absolutely no knowledge or

expertise in determining how much it will cost

to close a landfill, correct?

A. Correct.

Am I to understand that you are

unaware that the City of Morris has offered to

provide some sort of local government

guarantee?

A. I don’t recall whether they did or

not,

4. At any time?

A. At any time I don’t recall whether

they did or not.

4. You would agree that the City of

Morris as the owner of the property where the

landfill is located can be a local government

guarantee for that landfill, correct?

A. They could provide a local government

guarantee, yes, I would guess they could.

4. I don’t want you to guess. You spent

years

- -

A. Without me looking at the regulations

specifically

4. I would like you to. What I want you

to do is take a look at in particular Section

811.71 7Al A, and see if that refreshes your

recollection.

A. What was your question then?

4. My question is would you agree that

the City ofMorris could provide a local

government guarantee to meet the financial

assurance requirements, correct?

A. Yes, I think they should be able

to.

And that’s because they are an owner,

and they can certainly provide a guarantee as

long as they meet the financial tests of a

local government entity, correct?

A. Yes.

You’re just unaware of whether or not

they have ever attempted to do that to date,

correct?

A. Correct.

4. And if they were to file that

guarantee tomorrow, it would be your opinion

that that would meet the financial assurance

requirements, correct?

A. I would have to look at it. I would

have to see the bond rating, the different

ratios. I don’tknow.

Let’s give a hypothetical then.

Assuming that the City ofMorris meets the

bond rating and the specific ratios of the

financial test, you would agree that if they

file a guarantee in the near future, that

would meet the financial assurance

requirements in this case, correct?

A. I think they could do that.

4. You agree that a unit oflocal

government does not have to hire a third party

to perform. It can guarantee performance

itself, correct?

A. They can guarantee performance

themselves.

And a local unit ofgovernment does

not have to guarantee that it will pay a third

party for performance, rather it will

guarantee that it will perform?

A. Perform orpay.

So, your statement is yes, they can

agree to perform or pay, correct?

A. Correct.

MR. PORTER: Can you read back the

question before the last question that I

asked.

(Whereupon the reporter then read the

requested testimony.)

Let me ask the question again. Would

you agree that once a unit of local government

guarantees performance, they do not have to

post any other financial assurance, correct?

A. If they have passed this test, it

does not appear that they have to provide any

other financial assurance.

So, once they pass the financial

test, which is actually referenced in 811.716,

they no longer have to post a bond or

assurance vehicle, correct?

A. Correct.

As you sit here today you do not know

whether or not the City ofMorris passes the

financial test, correct?

A. Correct.

It is perfectly appropriate for a

municipality that owns a landfill to guarantee

its own landfill, correct?

A. Yes, correct.

Likewise a municipal owner of a

landfill can be the guarantor for the

operator, correct?

A. Correct.

4. Are you aware that the City of Morris

has been providing leachate treatment for the

facility?

A. No.

You don’t have any reason to believe

that the City of Morris

- -

strike that.

Are you aware that there is an agreement

between the City ofMorris and the operator

regarding the leachate treatment?

A. No, not aware of that.

4. I take it then you have no knowledge

ofwhether or not the City of Morris has ever

failed to provide leachate treatment?

A. I don’t know.

Would you agree that ifthere is

actual performance of closure, post closure

activities, that relieves any responsibility

to provide financial assurance ofthose

activities, correct?

A. Could you state that question again.

Probably not. You would agree that

if indeed there is actual performance of a

closure, post closure activity, that there is

no need to provide financial assurance for

that activity, correct?

A. Are you saying ifthe municipality

is, they close the landfill and provide all of

the post closure care, is there a need for

them for post financial assurance?

4. That’s a slightly different question,

but I will ask that one too.

A. I don’t understand your question.

You would agree that if indeed the

City of Morris is treating the leachate

emanating from the facility, if any, that

there is no need to post financial assurances

for leachate treatment, correct?

A. No. I would not say that’s correct,

because what if tomorrow they abandon the

facility.

4. Well, you would agree that if a

municipality provides an agreement or a

guarantee that they will perform

- -

A. If they have provided the guarantee.

14

A. If they pass this test, they do

not have to provide alternate financial

assurance.

And so if they provide a guarantee

that they will perform

A. Uh-huh.

- -

and they are indeed performing,

obviously there is no need to provide any

other financial assurance, correct?

A. If they can pass this financial test,

they do not need to provide alternate

financial assurance.

MR. GRANT: I ask that we clarify

which test that you are talking about as far

as this test.

Let me askthe question. Itwill be

easier for you. You are talking about the

financial test that’s referenced in 811.716,

correct?

A. Correct.

It is actually referenced in 811.717,

but it says that the guarantor shall meet the

requirements of the local government financial

test in Section 811.716, correct?

A. Correct.

And so whenever you are saying meets

this test,you are talking about that

financial test referenced in 811.716?

A. Correct.

4. Through this dep whenever you said

meets this test, that’s what you meant,

correct?

A. Correct.

4. So, assume then that the City has

offered to guaranteethat the leachate will be

treated for a hundred years, and that they

agree to do that free of charge. You would

agree there is no need to post 10.8 million

dollars of financial assurance for that

leachate treatment, correct?

A. If they have passed the financial

test and satisfied the requirements of 811.716

or 717 like we are talking about, I would

agree there is no need to post an alternate

instrument.

4. Let me ask that more complete

hypothetical. Let’s assume that the City of

Morris meets the financial test of 811.716.

They offer to guarantee that the leachate

treatment will be done by the City of Morris,

that it will perform leachate treatment for a

hundred years. Then there is no need to post

10.8 million dollars of financial assurance,

correct?

A. Is your question if they have asked

that or guaranteed to do that, do they not

have to pass the financial test?

4. No. I am posing the hypothetical

that the City ofMorris passes the financial

test. You don’t know that right now, if

they pass that test. So, I am posing a

hypothetical that they do indeed pass it.

Now, assuming the City of Morris passes that

financial test, and they have offered to

guarantee the leachate treatment for a hundred

years, you would agree that there is no need

to post financial assurance for that leachate

treatment, correct?

A. No. I would not say that. I would

say they still have to post financial

assurance. The point of financial assurance

is if tomorrow they leave the town, that we

have money to pay a third party to do this

work. In this case they are posting assets

that they have, bonds or something like that,

that we have. I mean do you

- -

You would agree that posting the

financial guarantee referenced in 811.717 is

the only financial assurance that’s required,

correct?

A. If they can pass this, this would

be the only financial assurance that’s

required.

4. And so when they meet that financial

test, they don’t actually have to post a bond.

Theyjust have to guarantee performance?

A. They would have to have a bond rating

or something like that to show that they could

actually come in here and do this work. If

they are monitoring leachate, which is a

requirement anyway probably of their permit,

that’s a side issue.

Right. When the City posts its

guarantee, and it meets the financial test, no

- -

that’s all that’s required,

correct?

15

63

A. Correct.

Are you aware that $950,000.00 of the

cost estimate is for exhumation of waste off

ofan existing parcel and onto another parcel

for an alleged over height?

A. No.

Are you aware that it is the policy

of the Illinois Environmental Protection

Agency not to correct over heights merely for

the sake of correcting an over height?

MR. GRANT: Is that a question? I

mean can you ask that as a question?

MR. PORTEIt I am asking if he is

aware of that.

MIt GIW4T: I am going to object.

A. Would you mind restating it another

way, please.

Are you aware that there is a policy

of the Illinois Environmental Protection

Agency to allow over heights to remain in

place as long as they don’t pose an additional

risk of run-off or degradation of the site due

to improper slope?

A. I am not sure that would be a Permit

Section decision.

So, you do not know if that’s the

policy of the EPA or not, correct?

A. I am not sure.

Are you aware that the IEPA has

recently taken over 33 abandoned sites?

A. I don’t know the number. I know

there are some sites that they have had to

take over because the owners have abandoned

the facilities.

Do you know if any ofthose sites

have over height?

A. I don’t know.

You understand what I mean by over

height is where the site has grown higher

than it was permitted to under the permit,

right?

A. Yes.

So, I take it you don’t know how

the EPA has reacted or responded to any over

heights ofthose sites, is that correct?

A. That’s correct.

Would you agree that if

- -

strike

that.

You are aware that the City of Morris is

the siting authority for the landfill?

A. What do you mean by that?

Well, you understand that under

Section 39.2 of the Illinois Environmental

Protection Act a local municipality has the

authority and duty to permit new or expanded

facilities

- -

strike that

- -

has the duty to

determine whether or not a site is appropriate

for new or proposed expansions offacilities?

Do you understand that?

A. That would be a Permit Section

decision. I don’t really know that much about

it.

You don’t know anything about local

municipalities and whether or not they have

to approve a site location application,

correct?

A. Eight. That’s a Permit Section

decision.

You don’t know whether or not the

Permit Section usually allows permits to be

amended or modified to allow for an over

height if it occurs?

A. I don’t know.

Assume that the City of Morris

performs the necessary tasks to accomplish a

permit change for this landfill such that

there is no longer an over height. Would you

agree that there is no need to post financial

assurance then for an over height?

A. Could you state that question another

way.

Assume that the City of Morris has

the permit at issue amended such that the

present height of the landfill is permitted.

You would agree then that there is no need to

post financial assurances for an over height,

correct?

A. I guess I don’t know how to answer

that question. Could you state it in another

way?

I thought I did. Do you have a

specific problem with the question?

A. I guess what I don’t understand is

you are saying if they amend this over height,

other financial assurance is required,

correct?

65

67

which I don’t even know about, if there is an

over height at a landfill, they amend it in

what way?

If they amend or modify

- -

strike

that.

If they get a permit change such that

the present height ofthe landfill is

permitted.

A. Permitted, but does not affect the

cost estimate, is that what you’re

Strike that. In your review of

various financial assurance documentation

over the four years that you were in that

department, didyou ever see cost estimates

for correction of over height?

A. I don’t recall if those dealt with

correction of over height.

4. In the entire time that you worked in

the Financial Assurance Department did you

ever see an owner operator have to pay

financial assurances based upon an over

height?

A. I did not determine technically what

went into that cost estimate. So, I can’t say

if it was for an over height or not in that

period of time.

4. All that you did was to determine

whether or not the financial assurances that

were posted met the bottom line number that

you were given, is that correct?

A. Correct.

And so again you don’t recall ever

- -

strike that.

I think my record is clear, but you would

agree that under Section 811.717 the City of

Morris can simply agree to performing the post

closure activities, and that’s all that’s

required in the financial assurance

15

regulations, correct?

A. If they meet the components of the

financial test that you were referring to

previously, that’s all they have to post for

financial assurance.

4. Let me ask it that way. Assuming the

City ofMorris meets the financial test, it is

your understanding that all it has to do is

guarantee that it will perform the post

closure activities and closure activities, and

no further financial assurance is required,

correct?

A. Correct.

MR. PORTER: I have nothing further.

MS. GRAYSON: Let’s take a short

break.

(Whereupon the deposition was in

recess.)

MR. PORTER: I actually have a couple

others. I withdrawmy no further question

statement.

EXAMINATION BY

MR. PORTER (CONTINUED):

Assuming that the owner or operator

posts financial assurance in the short term,

are you aware of any environmental damage or

other damage caused by the lack, or alleged

lack of financial assurance up to today?

A. I am not aware of any.

4. And you are not aware of any damage

to the Illinois Environmental Protection

Agency or the State of Illinois caused by the

lack of financial assurance, correct?

A. Other than the hours I seem to spend

on this particular site over the last five

years, no.

At any time did you ever suggest to

the City of Morris to file under 811.717?

A. I don’t remember if I suggested that

or not.

4. Do you know if anybody did?

A. I don’t know. The options are there.

They can get them right off our web site.

Well, you are aware that the operator

was responsible for posting financial

assurance for many years, and then paying the

premium to the City subsequent to that, is

that correct?

A. I don’t know who he paid the premium

to, he or they.

4. So, you don’t know between the owner

operator who it was that was acquiring the

financial assurance historically for this

site, correct?

A. Last I recall one of the bonds was

paid for by the City, and the two others were

from CLC.

4. And when those bonds were being

posted, at any time did you ever have any

conversations with anyone from CLC or the City

indicating that those bonds could have been

avoided simply by following 811.717?

A. Did I ever propose that to them?

4. Right.

A. I don’t recall. If they would have

asked me for options, I would have explained

what they could have done under all of them,

but I don’t recall having any conversations

with them.

4. Other than what you have testified to

today, do you have any other opinions

concerning this case?

A. No.

MR. PORTER Iwill go ahead

have no further questions.

MS. GRAYSON: Just a few questions.

EXAMINATION BY

MS. GRAYSON:

4. Do you have any opinions regarding

penalties in this case?

If I was to provide you with cost

estimates for or providedby the City of

Morris and Community Landfill Company as to

the cost of financial assurance, would you be

able to come up with, provide me with some

sort of opinion as to the amount offinancial

assurance, the cost of financial assurance

that would have been paid during the period

that we are talking about, which is 2000 and

2004 at this point?

A. Yes.

MR. GRANT: That’s it.

MR. PORTER: I have a couple quick

follow-ups on that.

RE-EXAMINATION BY

MIt PORTER:

4. As

you sit here today you have no

such opinions, correct?

A. Correct.

Isn’t it true that back in 2000 the

City of Morris could have utilized 811.717,

which would have costnothing?

A. I don’t know whether they could have

70

A.No.

Have you reviewed any of the records

regarding penalties?

A. Any records involving penalties with

this case?

Yes.

A.No.

MS. GRAYSON: I have no further

questions.

MX. GRANT: Just a couple.

EXAMINATION BY

MR. GRANT:

4. Mr. Harris, you are aware that I have

named you as a potential witness in this case,

isn’t that correct?

A. Yes.

If I would provide you with

information as to the avoided cost of

providing financial assurance, would you be

able to come up with an opinion as to money

that was saved by failure to provide financial

assurance?

A. Yes.

or not.

Assuming they meet the financial

tests, you would agree that back in 2000 the

City of Morris could have posted financial

assurance merely by using 811.717, which would

have cost nothing?

A. If they passed the ratios, sure.

And then there would have been

absolutely no savings to the City of Morris

for not posting financial assurance from the

year 2000 through today, correct?

A. Well, you could say that, but they

also have to tie up a certain amount of

tangible to pass the test.

4. Where within the statute do you

see that any amount of the City’s bonding

authority would in any way have to be tied up

merely by passing a financial test?

A. Put it this way, you have X amount of

tangible net worth that cannot be used for

something else. Say like with myjob now they

wanted to get a loan for water treatment

improvement. They couldn’t get that loan

because ofthe bonding authority.

Show me within the regulation where

there is any indication that the City of

Morris’s bonding authority would have to be

tied up in order to provide a guarantee under

811.7

17.

A. It would not say that it would have

to be tied up.

It doesn’t say that on the financial

assurance test either, does it? I am sorry,

strike that.

It doesn’t say that under the financial

test referenced in

811.716

either, correct?

A. Right. Tangible though meaning they

can get it, right?

4. Well, isn’t it true that 811.715

would be the method that would necessarily tie

up their bonding authority, which is posting a

bond without a surety?

A. Right.

And

so wouldn’t you agree that under

811.717 you do not have to post a bond without

a surety or with a surety? You merely have to

file a guarantee that you will perform?

A. Right.

1

And therefore, their bonding

authority is in no way tied up, and there is

3   no savings whatsoever to the City of Morris

from allegedly failing to post financial

assurances since 2000 to today’s date,

correct?

7

A. Yes.

MR. PORTER: Nothing further.

MR. GRANT: Mr. Harris

go ahead.

RE-EXAMINATION BY

MS. GRAYSON:

Just something further, have you been

asked to prepare a report in this matter?

A. No.

MS. GRAYSON: I guess we would just

like to reserve the right to continue the

deposition if he does prepare a report.

MR. GRANT: You can make that

request. There has been, the reason that

there is no report is because of what

believe are discovery issues with the

Respondents in this case. We will see what

the Board has to say about

it.

STATE 

ILLINOIS

COUNTY OF CHRISTIAN)

I, Sandra K. Haines, a Notary Public and

Certified Shorthand Reporter, associated with

Stewart-Names Court Reporting, do hereby

by me, and that the

contains a

true and

17  all such shorthand

18

Given under my

19  day of August, 2004

2QFFICIAL

SEAL

HAINE

&/i.

ARY prn~.~f ATE

~ i.~.ms Notary 

Public

an4~5SR

oMMIS~fl1’IFXPIRE&02/O2S

RE-EXAMINATION BY

MR. GRANT:

Mr. Harris, in evaluating the

financial assurance for the Morris Community

Landfill did you ever see anything that

suggested that the City of Morris had applied

for local government guarantee as defined in

the regulations?

A. No, I don’t recall if they had or

not.

Did you ever see any bonds,

performance bonds provided by the City of

Morris for the Morris Community Landfill?

A. Yes.

MR. GRANT: That’s all that I have

got.

MR. PORTER: I have no follow up.

Thank you very much.

MR. GRANT: We reserve.

(Witness Excused)

7  certify that prior to the

8   deposition herein, and on

9   August, 2004, the Deponent

10  was, by me, duly sworn to

11  in relation to the matter

herein. That on said date

deposition was taken down

me and afterwards reduced

taking of the

the 25th day of

BLAXE

OLIN HARRIS

testify to the truth

in controversy

the foregoing

stenographically by

to typewritten form

foregoing transcript

accurate translation of

notes

hand and seal this 27th

at Taylorville, Illinois.~

BEFORE 

THE ILLINOIS POLLUTION

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

—

)

NO.

PCB

03—191

CO,eOUNITY LANDFILL COMPANY, INC.,

an Illinois Corporation, and the

CITY 

OF MORRIS, an

Illinois

municipal corporation,

RespOndents.

DISCOVERY DEPOSITION

The

discovery deposition 

of BRIAN WHITE,

taken by the Respondent, on 

the 20th day of

Septesther, 

2055, 

at the Illinois EnviroseoLental

Protection Agency headquarters, 

1340 North Ninth

Street, Springfield, Illinois, before Tassara C,

Leesroan, certified Shorthand Reporter of the State

of Illinois.

CSR #84—3529

APPEARANCES

Office of the Attorney General

State of Illinois

198 West Randolph Street, 20th Floor

Chicago, Illinois 60601

BY: Mr. Christopher 

Grant

Appearing on behalf of Complainamt,

People of the State of Illinois

LaRose Bosco, Ltd.

Attorneys at Law

200 Worth LaSalie, Suite 2910

ChiCago, Illinois 60601

BY Ms. Clarissa Graysoo via telephone)

Appearing on behalf of Respondent,

community Landfill Company, Inc.

Ninshaw a  Culbertson

Attorneys at Law

100 Park Avenue

P.O. Box 1389

Rnckford, Illinois 61105—1399

BY: Mr. RiChard S. Porter

Appearing on behalf of Respondent,

city

of Morris

INDEX

Examination by Mr. Porter  

3

Examination by sin. crayson  49

EXHIBITS

Identified

Exhibit No. 1     

17

Exhibit No. 2     

15

Exhibit No. 3   

15

Page

7

5

9120/2005

Page 3

BRIAN WHITE,

a witness, having been first duly 

sworn upon

his

oath, testified as follows:

MR. PORTER:

Let

the record reflect this is

the discovery deposition of Brian White,

taken

after

notice,

pursuant to

all

applicable rules of

the illinois Pollution

Control Board and the

applicable rules of the filinois Supreme

Court.

EXAMINATION cONDUcTRI)

BY MR. PORTER:

Q Mr. White, my name

is Rick

Porter, and

•

m going to

be asking you a few questions today.

Have you given a deposition before?

A No.

All

right. I’m

sure

that you’ve been

told the process, but it’s

pretty

simple. I’m

going to

ask

questions,

and

you need to

answer

them. I’d

you to wait until I’m done

talking

before you

answer because

that’s going to be

easier

for the

reporter

take

down what you said. Also,

if J ever

ask

question and

you don’t

understand

it or it’s unclear, just tell me that

and

I will

rephrase it; but if you

answer

it, we’re

all

going

assume

that you

understood

it. Is that

Page 4

acceptable?

A Yes.

Q All right. State your whole name for the

record.

A My

name

Brian Stephen, S-T-E-P-H-E-N,

White.

Q And your age and date

birth please?

A My

age

is 46. I

was born June 7, 1959.

Q And your present address?

A It’s 814

Cypress, C-Y-P-R-E-S-S, Drive,

in Chatham.

Q And last year of education you completed?

Last year

of education would be

towards a

masters in Public 

Administration.

Q So you have a bachelor’s degree?

A I have a

bachelor’s degree in

Environmental

Health.

Q And where

that from?

A From Illinois State University.

Q And when did

you

get that?

1983.

Q And then

you’ve taken some classes since

then toward a masters degree,

is that

correct?

A Yes.

BRIAN WHrrE

STEWART

IL&INES

COURT REPORTING

Page 1

Page 4

BRIAN WRITE

CondcnseIt’~

9/20/2005

Q Where at?

A Started

out at Sangamon State University.

It’s now University of illinois at Springfield.

Q And what masters degree are you going for?

A It’s a masters in Public Administration.

Q How far are you from acquiring that?

A Four hours.

Q And when do you expect to finish that up?

A When I finish my paper.

Q What’s your best estimate on that?

A I’m hopingthis fall.

Q Okay. What’s your paper on?

A It’s on the meaning of Public

Administration.

MS. GRAYSON: I’m sony. Did you say the

meaning?

A Yes. I forgot we had somebody on the

phone.

Q All right. Other thanyour masters work,

any other secondary education that you have had

since 1983?

No.

Ever been charged with or convicted of a

Page 6

A No.

Q Please 

well, what’s your present

occupation?

A My payroll title

is Public Service

Administrator. My working title is Compliance Unit

Manager for the Bureau of Land.

Q I’m sorry. Can you repeat that, the last

part? What’s your working title?

A My working title is Compliance Unit

Manager for the Bureau of Land.

Q And what’s the difference between your

working title and your actual title?

A My payroll title is one given to us by

the Central Management Services. Everybody has a

title in the state of Illinois which may not be as

descriptive as their working title.

Q Got you. How long have you been employed

as the Compliance Unit Manager?

A Since January of ‘91.

Q And how long have you had your payroll

title?

A Oh, boy, since probably ‘94. They

what they did in the state of Illinois was they did

some broadbanding of titles, so they changed some

Page 7

of the

names.

So it was

somewhere around

‘94 for

the Public Service Administrator title.

Q Since January of 1991 have you been

employed in any other way other than

for the state

of Illinois?

No.

Q Prior to 1991 where were you employed?

I was

employed at the EPA.

Q In what capacity?

A In the Compliance Unit.

Q And that’s again the IEPA?

A Yes.

Q In the Compliance Unit. And what was

your title there?

A Environmental Protection Specialist I,

Environmental Protection Specialist II,

Environmental Protection Specialist

ia.

Q And chronologically when did you have

those positions?

A I started with EPA in 1988, and basically

by probably ‘891 was an EPS ii, by ‘901 was an

EPS

in,

and by ‘94 I became an EPS IV, which then

turned into the broadbanded title of PSA, Public

Service Administrator.

Q Okay. But basically since 1991 you’ve

had the same duties?

A No, the duties were expanded in 2002 to

take

another program.

Q All right. What were your

duties from

‘91 to 2002?

It was as Compliance Unit

Manager

basically doing the compliance enforcement

activities, overseeing those,

for the Bureau of

Land.

What do you mean by the

enforcement

activities? Enforcement activities

of what?

A It’s the informal enforcement activities

from

tracking the inspection reports, information

about violation notices. We used to issue the

violation notices directly out of the Compliance

Unit

when

it was all centralized. We would issue

return compliance letters, a variety

other

informal enforcement letters

that time.

Q Okay. Since

1991

has your role been to

see to

it that the notices of violation are issued,

or are you literally inspecting an order to

determine whether or not a notice is warranted?

Does that make sense?

Page 8

Page

7

crime?

STEWART

IIAINES

COURT REPORTING

PageS-Page 8

BRIAN WHITE

CondcnscIt~

9/20/2005

Page9

Pagell

A If you could repeat

please.

Q I guess what I’m asking is: Is your

function primarily, since 1991, procedural, or are

you literally substantively making determinations of

whether or not a notice ofviolation is warranted?

A It’s procedural.

Q And what department makes the

determination of whether or not a notice of

violation is warranted?

A It actually comes from the people that

either do the inspections or do the reviews of

records.

Q And what are their titles? Well, let’s

narrow

down. It sounds to me like your function

is for any violation that falls under Bureau of

Land, is that correct?

A All violation notices would’ve somehow

been handled by our unit in some way.

Q Okay. Andwhatvarious--arethere

various subdepartments that conduct the reviews and

inspections to issue notices of violations? For

example, someone that’s reviewing financial

assurances is in the Financial Assurance

Department, is that correct?

Page 10

A They’re generally

we don’t necessarily

have a unit called that, but

has been called

that at varieties of times

at different times.

We’ve gone through a variety of reorganizations,

and we’ve had different labels put on it.

Q All right. So break it down for me.

What

your unit is what again,just Bureau of

Land, Financial Compliance

or I’m sony, Bureau

of Land, what?

A I’m part offr Waste Reduction and

Compliance Section.

Q Okay. And is there a subsection to that?

A It’s the ComplianceUnit.

Q And within the Compliance Unit, are there

any subsets that report to that unit?

A No.

Q Flow many inspectors and reviewers are

there that would be turning in inspection and

review reports to your unit?

A There are three accountants in the

MS. GRAYSON: Did you saythree accountants?

A Yes. Three accountants in the Compliance

Unit at this time and one accountant supervisor.

Q And are you the boss of the accountant

supervisor?

A Yes.

Q Andhave you ever acted as a reviewer or

accountant?

A I’ve completed financial record reviews

in the past

Q Andwhenwasthelasttimeyoudidthat?

A On my own probably, and this is my best

guess, about 1989 or ‘90.

Q Okay. In preparation for your deposition

today did you review any documents?

A Yes.

Q What documents

did

you review?

A Basically the documents that are

associated with the affidavit.

Q And what documents are those?

A Ireviewed some of the permits. I

reviewed the notice of violation. I reviewed some

of the financial documents.

MS. GRAYSON: Reviewed what? I’m sorry. I

didn’t hear the last one.

A Some of the financial documents.

Q What financial documents did you review?

A I reviewed the bonds from Frontier. I

reviewed the record review by Blake. I reviewed

the responses to the violation notice.

Q Anything else?

A There’s probably some other stuff in

there.

Q Did you review Blake Harris’s deposition?

A Yes, some of it.

Q And after having reviewed that deposition

do you have any criticisms or concerns?

A I didn’t really look at it that closely.

I didn’t read the whole thing, just kind of skimmed

through

it.

Q So as you sit here today you have no

reason to disbelieve anything that Blake Harris

testified to, is that correct?

A I haven’t read through

very carefully,

so I don’t have an opinion on that.

Q You mentioned that you reviewed Blake

Harris’s record reviews. I did not see those, or

if I did I didn’t recognize those, in the stack of

documents that’s been provided to mc today. Are

they here?

A Actually his

it was more the singular

than the plural. So it was record review, and

Page 12

STEWART

ILAJNES

COURT REPORTING

Page

Page 12

BRIAN WIUTE

CondenscIt~

9/20/2005

Page 13

Page 15

there

really isn’t a whole

lot to the review

itself. There isn’t a lot ofnarrative to it. So

you probably saw it. You just didn’t recognize

it.

Q Can you show

to me please out of the

documents that are in front of me here.

A So there wouldbetwo. One forthe

owner. One for the operator.

Q Okay. Now those were

happen to be a

couple of the documents that I segregated as ones I

wanted to talk to you about,

and

I also notice a

couple

documents entitled status

of violations

worksheet. What are

those?

A Status of violation worksheet

document that basically summarizes somebody’s

review of a submittal. The submittal date is put

at the top, it’s called the date of response, and

shows the date that

it was

received,

so you

would have to go to the file to look for that

document.

MR. PORTER: All right. Chris,

I’d like to

mark the record reviews. How do you want to handle

that?

MR. GRANT:

Those are original,

aren’t they?

MR. PORTER: Yes.

Page

MR. GRANT: we’ll make copies.

MS. GRAYSON: Can you fax to me

maybe mark

the ones that you’re going to be using andthen fax

them to me so I can have them also?

MR. PORTER: You know, Clarissa, they’re

really abbreviated. I mean it’s going to take me

all of five minutes to go through them, but do you

want them faxed to you?

MS. GRAYSON: I guess afterwards is fine.

MR. PORTER: okay.

MS. GRAYSON: well, it’s hard for me to say

wait until afterwards because I don’t know what’s

even in there.

MR. PORTER: Well, let me

I’ll describe

them to you for the record here. First of all, can

wejustmark them on the back? Will that work?

MR. GRANT: You know, they’re Illinois EPA

files, and I don’t know what their policies are.

I’d prefer just to make copies.

MR. PORTER: Why don’t we make copies real

quick

ME. GRANT: Yeah.

MR.PORTER: --otherwisewecan’treferto

them in the record.

(Whereupon a short break was

taken.)

MR. PORTER: For the record, we have now

marked as Exhibit 2 the record review done by Blake

Harris on October

31, 2000

concerning the city of

Morris.

MR. GRANT: Do you have two ofthose? Are

they identical?

MR. PORTER: Yeah, she

somehow we ended

with--

You’ve got

one

for an

owner and

one for

an operator, but you have two owners.

MR. PORTER: Yeah.

MR. GRANT: I don’t have copies of them, but

I’ve seen them. You can go ahead.

MR. PORTER: Yeah, but when I

—

let’s go off

the record real quick.

(Whereupon a short break was

t.)

Q After some confusion we now have marked

as Exhibit

No. 2 the

record review

for the

operator

and Exhibit No. 3 the record review for the owner,

is that

correct?

Yes.

MS. GRAYSON: And what

is Exhibit No. 1?

MR. PORTER: Exhibit 1 was his affidavit. Did

I not identify that?

MR. GRANT: I don’t think you did.

MR.

PORTER: Okay. We will.

Q Attached to Exhibit No.2 appears

be a

memo. What is that?

It’s a listing of the violations he’s

alleging.

Q And was that memo ever forwarded to the

operator?

No.

Q Okay. Was it then subsumed into some

type of notice of violation?

A Yes, those were

those violations,

alleged violations were then listed in the

attachment to violation notice.

Q And the violation specifically was

811.700(0 and 21 (d)(2), is that right?

That is correct

Q Anditwasthesameforboththeowner

and the operator, is that correct?

That is correct.

Q Inpreparing--otherthanwhatwe’ve

Page 16

STEWART

HAINES

COURT REPORTING

Page 13-Page 16

BRIAN WHITE

ContnseIt~

Page 17

already talked about, have you reviewed any oiler

documents in preparation foryour deposition today?

I just looked at the regulations again.

Q And in particular, was there any

particular

strike that. Was there any

particular regulation that you reviewed?

Not really.

Q Well, I imagine you reviewed Section 811?

811.700 for financial.

Q Okay. Did you review 717?

No.

series

funds.

Any particular section within the 700

that you reviewed?

712 probably the closest.

And why 712?

Because that has to do with performance

Q All right. Let me show you what we’ve

had marked as Deposition Exhibit No. 1. What is

that?

That’s my affidavit.

Q Is that a true and accurate copy of your

affidavit?

Yes.

Q And for what purpose was that affidavit

prepared, if you know?

I’m not exactly sure of the actual

purpose on that one.

Q Did you draft the text, or did you have

the text drafted for you and then executed?

Idraftedmost of the text.

Q Did you meet with anyone in preparation

for your deposition today?

Yes.

Q Who didyou meet with?

I met with Bruce Kugler and Chris Grant.

MR. PORTER:

Arid, counsel, be prepared for

this.

Q What did you discuss?

MR.

GRANT: okay. I’m going

object.

Generally I’ll let you answer and I’ll stop if we

start to get into something that I consider to be

privileged.

We talked about in general what a

deposition is, what your role would be, what the

court reporter’s role would be, and what Chris’s

role would be in this, and what my role would be.

Q Did you talk about yourexpected

testimony?

We talked about things that might be

asked.

9/20/2005

Page 19

Q And what did you

strike that. What

was said might be asked?

MR.

GRANT: This is the point I think I’m

going to object and ask him not

answer the

question.

MR. PORTER:

And I guess the reason I moved

forward with the questioning is I wasn t sure if

you were going

assert that he is indeed your

client. Is that your

MR.

GRANT: Yeah, we’re going to claim

attorney/client privilege on all communications,

which for this purpose includes attorney general’s

office, department of legal counsel personnel,

anybody on an enforcement decision group that

includes an attorney, and Mr. White.

And as long as you raise that, there’s

one other thing that may come up. I want just to

let you know ahead of time. As you know we’ve

got

we’ve made a claim under the Frontier bonds,

and it’s possibly going

be it will end up in

litigation. In any event, it’s a matter on which

Page 20

we’re adverse with Frontier and also I think

adverse with both the city and with the Community

Landfill Company on because ofthe possible impact

of us making a claim on the Frontier bonds and any

litigation on.

So as far as discussing the Frontier

bonds, it’s fair game in this until we get

the

point as to any actions that we’re going

take in

the future or decision makings or our belief in

or in the waywe’re reviewing legal strategy as far

as trying to collect on the Frontier bond. So just

in case that comes up.

MR. PORTER:

well, that does beg a couple of

questions.

Q Have you made any determination or do you

have any opinion whether or not any closure or

post-closure activities have not been performed at

the site?

Is that question directed at me?

Q Uh-huh.

That is for other people in the Bureau of

Land to determine, not to me.

Q So you have no such opinion, is that

correct?

Page 18

STEWART

HAINES

COURT REPORTING

Page 17- Page 20

BRIAN WHITh

Condenselt

9/20/2005

Page 21

A I have no opinion on that.

Q Has anyone from your department issued a

letter to Frontier Insurance Group asserting that

any amounts need to

paidbased on a bond held

concerning the CLC landfill?

MR. GRANT: okay. I’m not going to

I’m not

going to object to that question because we’ve

copied both the city and the Community Landfill

Company on when we sent that communication to

Frontier Insurance Company, but I’m not waiving the

right to claim privilege on those questions.

Q Do you need it read back?

A Yes.

MR. PORTER: if you would.

(Whereupon the reporter then

read the requested testimony.)

MR. GRANT: You can go ahead and answer.

A Yes.

Q Okay. Now I’ve seen in the documents

that are at our table here a June 28, 2005 letter

to Frontier Insurance informing them that the

period of the bond should be automatically extended

for 12 months, but I am not seeing a letter, at

least in the materials in front of me here, making

a claim on any funds from the bond. Are you

certain that such a letter has been sent?

A Yes.

Q And do you know when it was sent?

ANO.

Q

just

Q

MR.

Page 22

Is it in the material in front ofme, and

missed it?

I’m not sure.

Can you take a quick look for me please?

PORTER: off the record.

(Whereupon an off-the-record

discussion was held.).

Q Directing your attention now 

to the

affidavit, explain to me again

MR. GRANT: Do you want to identify this as

Exhibit I now?

MR. PORTER: Yeah.

Q

which is exhibit I. Explain to me

again what a Compliance Unit Manager does.

A Compliance Unit Manager for the Bureau of

Land, the role has evolved over time. It started

out as making sure the requirements for USEPA’s

hazardous waste program, the RCRA subtitle C, that

those obligations were filled for reporting.

Page 23

The role expanded into other programs

for

2 the Bureau of Land outside of the hazardous waste,

3 the LUST program, which is leaking underground

storage tanks, tires program, and solid waste,

5 which includes landfills and open dumps. So

6 basically the unit itself tracks the compliance

7 enforcement activities up until the point of a

8 formal enforcement process.

And at one time too all the violation

10 notices and anyother infonnal enforcement notices

ii all were sent out of the Compliance Unit. That

12 role has now been decentralized andhas expanded

13 into our regional offices. And then in 2002, under

14 the Compliance Unit, the Financial Assurance

15 Program also moved under the Compliance Unit at

16 that time.

Q Okay. So at the time that the records

18 reviews were done by Blake Harris that was not part

19 of the Compliance Unit Manager’s responsibility?

A That is correct.

Q And in his deposition he indicated that

22 there were never more than two accountants that

23 were involved in reviewing financial assurances in

24 the time that he worked there from

which I

believe was ‘99 through 2004. Do you have any

reason to dispute that testimony?

A No.

Q He indicated that his immediate

supervisor was a Ms. Hope Wright. Is that

information correct?

A Yes.

Q You were not Hope Wright’s supervisor at

the time that this report was issued on 10-31-00,

is that correct?

A That is correct.

Q Are you now the supervisor

well,

strike that. What is Hope Wright’s title now, if

you know?

A She is an Environmental Protection

Specialist iv.

Q And is that the same position she had at

the time that the record review was done?

A Yes.

Q And are you now her supervisor?

ANO.

Q Okay. Who is her supervisor?

A Her supervisor is Dave Walters.

Q And where would

are these people

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BRIAN WRITE

CondenseIt’~

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Page 25

Page 27

within your department, or are they in a different

department?

A They’re

Hope and Dave, Dave is the

section

manager for the Waste Reduction and

Compliance Section, which the Compliance Unit is

part

of.

Q Okay. So Dave would be your boss?

A Yes.

Q Andso areyoukindofonthesametier

then as Hope, Ms. Wright?

A Hope is a bargaining unit

member. I am

not.

Q Okay. Soshewouldbe-- she’snot-- is

she your immediate supervisor?

A No.

Q Okay. But she is on a supervisory

position to people that are at the

same

level as

you, is that

correct?

A Could you repeat that please?

I’m not

sure I could.

She is not in your

department, is that right?

A She’s in my section. She’s not in my

unit.

Page 26

time he drafted this report, was not in your unit,

is that correct?

A That is correct.

Q Andasamatterof fact, noneof the

accountants that issued the records reviews

presently are in your unit, is that right, or is

that not right? I don’t know.

A Could you re-ask the question?

Q Blake Harris saidthathewasan

accountant

at the time he issued

this

review in the

way that that’s defined by the EPA. Is that your

understanding as

weil,

that he was an accountant at

the

time

he issued

this

records review on 10-31-00?

A I’m not positive.

Okay.

Who

issues the

records

reviews

presently?

The financial record reviews are

conducted by the accountants in the Compliance

Unit.

And-- and I’m sorry, are you in charge

of the Compliance Unit?

A Yes.

So now the accountants are, that issue

the records review, are

within

your unit, is that

correct?

A Yes.

Q But at the

time

that these records

reviews

were

done

they

were not?

A That is correct.

And

that change happened in 2002?

A Towards the end of 2002.

Q Do you know why that

why did

that

change happen?

A Like in everything else in state

government, you can’t keep things static, so

they

went

through

a reorganization.

Q Have you been involved in the

training

all

of the individuals that now

perform

records

review?

I’m involved in some of the training,

yes.

And exactly what is your role in training

those people?

A My role is--at first was to

set

the job

objectives for them, to

describe

what

needs

to be

in a record

review

as far as

when they write it

up. So

through

the job objectives I

was

able to

define the role for them, and then I would review

Page 28

the work that they did after

they

completed a

record review.

Q Is there any training

course

that’s

provided regarding

implementation

of the financial

assurance regulations to the

records

reviewers?

A There

was a course

in 2004 offered by the

USEPA.

The

course generally

focused

on RCRA

Subtitle C, which is hazardous waste. RCRA is

R-C-R-A. And the

training course

was put on by the

USEPA,

and

it was offered up in Chicago. It was a

four day, four and a half day course. And

basically a lot of the instruments used in the

hazardous waste program and the solid waste program

were the same. There’s credits, bonds, insurance,

financial tests, trust funds.

Q To yourknowledge has there ever been a

course or study concerning the use of municipal

guarantees?

Not to my knowledge.

Q In--

MS. GRAYSON: I’m sony. Was that a no?

MR. PORTER: He said not to my knowledge.

Q In

strike that. Do you ever review

the records reviews that are done?

Q Okay. And likewise, Blake Hanis, at the

STEWART

RAINES

COURT REPORTING

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BRIAN WifiTE

CondenseIt~

9/20/2005

A Yes.

Q And do you review them all?

A No.

Q Which ones do you review?

Generally anything that’s going to result

in a violation notice and some of the reviews for

people that

are just starting out.

Q And you’ve only been reviewing the record

reviews since 2002, is that correct?

A Yes.

Q So you did not review Blake Harris’s

record reviews concerning this landfill, is that

right?

A Not prior to him completing it.

And eventually

there was a notice of

violation issued concerning these records reviews,

is that correct?

A Yes.

Q And do you know the date of that notice

of violation?

A It’s November

Q Feelfreetolookatanythingyouneedto

look at to refresh your recollection.

A I wasn’t exactly

sure

of the date, but

1 November 14, 2000.

Q And

again,

you

did

not review that notice

3 of violation before

its

issuance, is that

correct?

A That is correct.

Q So you had absolutely no input of

whether

6 or not that notice of violation should be issued,

7 is that correct?

A That is correct.

All right.

Paragraph five of your

10 affidavit, Respondent’s Exhibit No. 1, indicates

11 that you are

familiar with

the landfill generally

known

as Morris

Community

Landfill. Is that

13 infonnation correct?

A Yes.

Q How have you become familiar

with

the

16 Morris Community Landfill?

A I’ve been

familiar

by looking at their

18 permits, by looking at the violation notice issued

19 by Blake,

and

I did an on-site visit.

Now

when

you looked at the

permits

and

21 the violation notice, that was recently in regard

22 to preparation for your affidavit, is

that

correct?

A Yes.

Had you done it before you prepared your

Page 31

affidavit?

Yes.

Q When was the first time that you had ever

become familiarwith the Morris Community Landfill?

A I can’t

recall.

Q What’s your best recollection?

Probably somewhere between 2002 and 2004.

Q You indicated you also did a site

review. When did that happen?

A In May of

this year.

Q Was there any report issued concerning

that site review?

A ldon’tknow.

Q Who attended that with you?

Mark Retzlaff from our field office,

Chris Liebman from ourpermit section, Beverly

Anderson from the compliance unit, and myself.

Q And at that time did you have any opinion

whether any closure or post-closure activity that

should’ve been performed was not being performed?

That’s not for me to evaluate.

Q You have no such opinion, is that

correct?

A I

have no opinion on that.

Q And did anybody in that group have such

an opinion or

verbalize such an

opinion to you?

No, they did not.

Q Didyou see anywaste being taken in at

that time?

Atthetimelwasthereldidnot see any

waste being taken in.

Q Didyou seetheevidence of waste being

talcen in in the

recent past?

It’s not an area I’m really familiar with

and stuff, so I m not

comfortable answering that.

Q I guess that kind of begs the question

of: Why did you go? I mean I understand your job

to be mainly

records review, is that correct, as

opposed to

Yes.

on-site inspections?

Yes.

Q And so what was the purpose of having you

there?

Just become familiar with the site, where

it was, what it looked like.

Q Paragraph five also indicates that the

permitted owner of the landfill is the city of

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STEWART

JIAINES

COURT

REPORTING

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BRIAN WHITE

Condcnselt”4

912012005

Page 33

Page 35

Morris. Upon what do you base that?

On the permit.

Q And which permit are you referring to?

You can look at the August of2000. You

can look at the modifications since then through

the August of 2002.

Q Your affidavit also provides that the

permitted operator is Community Landfill Company,

also known as

cLc.

upon what do you base that?

On the permit.

Q So the permits draw a distinction between

the owner and operator, is that correct?

Yes.

Q Now the motion for summary judgment

that’s been filed in this case, have you reviewed

that?

No.

Q Well, take my word for it that that

document suggests that the landfill was operating

as recently as May of 2005. Do you know if that

infonnation is correct or not?

A I

don’t know if it’s correct or not.

Q Do you have any information ofwhether

CLC

was operating the landfill as recently as May

of 2005?

It’s not something I review.

Q At any time to your knowledge has the

city of Morris ever been the permitted operator of

the landfill?

Not

my knowledge.

Q Do you have any information that the city

of Moths has ever physically operated the

landfill?

It’s not something I review.

Q You mentioned in paragraph six that you

reviewed the illinois EPA files regarding this

matter that relate

to CLC.

What Illinois

EPA

files

did you review other than what you’ve already

described?

A I

reviewed the

well, pretty much what

I described. I reviewed the bonds, I reviewed

the-- Blake’s review, I looked at the violation

notice, and I looked at the responses to the

violation notice.

Q Anything else?

There might’ve been, but nothing I can

recall at this time.

Q Okay. Those documents you just described

are the documents that you primarily relied upon in

order to come to your conclusions stated in your

affidavit, is that correct?

In part those are, yes.

Q Is there anything else that you relied

upon

come

the conclusions you came

in your

affidavit?

The permits and the regulations.

Q Paragraph seven indicates that

CLC

and

the city were issued various permits, including

closure and post-closure care permits. Upon what

do you base that, a review of the permits

themselves?

Yes.

Q Andagain,atnotimeinthosepermitsis

the city of Moths identified as the operator, is

that correct?

I don’t recall.

Q Doyouneedtolookatthepermitin

order to refresh your recollection?

Sure.

Q And I think you probably have it in front

ofyou here.

InthepermitthecityofMorrisisnot

Page 36

identified as the operator.

Q Okay. In paragraph number nine your

affidavit indicates that

CLC

and the city were

required to have financial assurance for its

significant modifications. To your knowledge did

the city ever perform any significant modifications

the landfill?

l’here were significant modifications,

which is a type of permit.

Q But isn’t

it true

that those significant

modifications were performed by

cLc

rather than the

city?

That’s for the permit reviewer to

determine.

Q You don’t have an opinion one way or the

other on that issue

A No.

is that correct?

That’s correct.

Q That same paragraph indicates that cLc

and the city were required to have financial

assurance. Isn’t it true that actually only the

operator need post financial assurance?

No.

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HAINES

COURT REPORTING

Page33-Page36

BRIAN WHIlE

Condensclt’TM

9/20/2005

Page 37

Page 39

Q Well, if an

well, strike that. In

2 your years, at least since 2002, reviewing these

financial assurance record reviews have you had

occasion to see that operators often post financial

assurance and the owners do not?

I don’t really recall. I haven’t thought

7 of

in those terms.

Q Well, you’re aware that the regulations

provide that an operator or an owner may post

financial assurance, is that correct?

That is correct.

Q Youwouldagreethenthatanownerof

land does not necessarily have

post financial

assurance, isn’t that right?

It’s the owner or operator.

Q So the owner himself does not necessarily

17 have to post financial assurance, is that correct?

The owner or operator.

Q So was my statement correct?

It’s the owner or operator. That’s the

way the regs read.

Q And so you would agree that the owner

himself does not necessarily have to post financial

assurance, right?

It would be the owner or operator.

Q Is there a reason you can’t answer that

with a yes or a no?

I’m just restating what the regs say.

Q Okay. Ifyou can, please answer with a

yes or a no. Isn’t

true that the owner does not

necessarily have to post financial assurance?

Yes.

MS. GRAYSON: I’m

sorry. I couldn’t hear your

answer.

MR.

GRANT: He answered yes.

It was in the affirmative.

Q Now paragraph ten provides that

CLC

and

the city provided financial assurance by obtaining

performance bonds. What was your basis of that

statement?

A review ofthe bonds.

Q And when you say that they provided

financial assurance, for the record, what does that

mean?

They submitted bonds to the Illinois EPA

from Frontier.

Q Well, the terms financial assurance as

they’re used in the realm of Illinois regulations

is a term of art, is that right?

I’m not sure what you’re asking.

Q Well, when we say financial assurance, we

mean that they posted some type of financial

mechanism that complies with the statutes that can

guarantee closure or post-closure activities, is

that correct?

That is correct, or corrective action.

Q So isn’t it true then that

CLC

did indeed

post some sort of vehicle to assure closure or

post-closure activities?

They have posted financial assurance,

yes.

Q And to your knowledge has there been any

failure to perfonn any closure or post-closure

activity?

That’s not up for me

decide.

Q So you’re unaware of any such failure, is

that correct?

I’m unaware, yes.

Q Are you aware that the largest component

ofthe financial assurance requirement is for

leaehate collection and management?

I haven’t evaluated it that closely.

Q Are you aware that the leachate

collection and management has actually been

performed

well, strike that. Are you aware that

the city has accepted the leachate from the

facility?

I’veheardthat.

Q And where did you hear that from?

From discussions on the site with

that

we had with Mr. Heisten.

Q And isn’t

it truethatthere

area

variety of mechanisms by which one may post

financial assurance?

Yes.

Q Asamatteroffact,Ithinktheregs

called for ten different vehicles, is that right?

Yes.

Q Is one of those vehicles actual

performance?

No.

Q Is one of those vehicles a municipal

guarantee?

AYe~

Q Are you awarethatthe city of Morrishas

offered to provide a municipal guarantee?

Page 38

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STEWART

HAINES

COURT REPORTING

Page

37

Page 40

BRIAN WU1TE

Condcnsclt”t

9/20/2005

Page 41

A I’m

aware that they have talked about it.

Q And are you aware that the

IEPA has

rejectedthat offer?

A I’m

not aware of that.

Q If indeed the city were to provide a

municipal

guarantee, you would agree that that

would meet the financial assurance requirements, is

that correct?

A If they provide a municipal

guarantee

that complies with the regulations, yes.

Q And Mr. Harris testified that a municipal

guarantee

MR.

GRANT: I’m going to object atthis

point. I don’t think, unless you have a deposition

transcript or something like that

to show, neither

he nor I know what Mr. Harris testified to.

MR. PORTER:

well, I can fix that problem.

MR. GRANT: All right.

MR. PORTER: I think I have an extra copy

even.

Q Isn’t it true 

that the city of Morris

could provide a municipal guarantee without tieing

up the bonding authority in your opinion?

A I would have to

look at what they would

1 submit and

compare itto

the

regulations.

They

2 have to comply with the regs.

817

requires

3 717 requires that

they

also comply

with

the

4 financial tests

in 716.

And do you know whether or not the city

6 of Morris complies with the financial test?

A I have no idea.

Have you personally rejected the city of

9 Morris’s offer to provide a municipal

guarantee?

A To the best of my knowledge

they

haven’t

submitted

anything for us to evaluate.

Now you would agree that if indeed the

13 city of Moths had provided

well, strike that.

14 At the present

time

the Frontier bonds had

been

15 extended, is that correct?

A We have requested that the bonds be

17 extended,yes.

Well,

and

the statute provides that they

will be extended automatically, is that right?

A Yes,ortheregsdo.

Q So would you agree that it’s the IEPA’s

22 position that there is still financial assurance

23 for

this

landfill concerning closure or

24 post-closure care?

A There’s no financial assurance that

2 complies with the regulations.

Q And

upon what do you

base

that opinion?

A On the fact

that

the Frontier bonds have

been

delisted from the Treasury Circular 570.

Anything else?

A And the regulations themselves.

I’m sorry. I

didn’t

follow the last

9 part. What do you mean by and

the

regulations

10 themselves?

A Well, I mean it’s

part of the regulations

12 and staff that they need

comply or that the

13 bonding company has to be listed on the

Treasury

14 Circular

570.

It’s

part

of 712(b).

Well, actually doesn’t 712(b) provide

16 that

the

surety

company is

licensed

to transact

17 business by the

department

of insurance that it

18 need not

be on that

Circular 570?

MR.

GRANT: Can he look at the regulations?

MR. PORTER: Absolutely.

A Idon’tneedto.

MR. GRANT: This is

I mean I

understand,

23 and I don’t want to

interfere with

your

24 exaimnation, but I mean

that was

settled three

years ago.

MR. PORTER I

understand

your position.

A There’s a three

letter

word in

712(b),

and it’s a conjunction. It’s and, A-N-D,

and

says and needs to be listed on the

Treasury

Circular

570.

But doesn’t that conjunction relate to

the clause immediately before it, which is that it

only needs to be on the Circular

570 if it-- if

the

insurer

is merely

licensed

to transact business

in a state as opposed to being

MR GRANT: I’m going to object again, and I’m

going to

MR. PORTER: Let me finish the question.

MR. GRANT: All right.

as opposed to being approved by the

department

of insurance?

MR. GRANT: I’m going

to object again on the

basis that this has been settled by the courts.

You can go ahead and answer the question.

A In my opinion no.

Upon what do you

base

that opinion?

A On reading the regulations.

Okay. So strictly the only

thing

you’re

Page 43

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STEWART

IIAINES

COURT

REPORTING

Page 41

Page 44

BRIAN

WHrrE

CondenscIt’~

basing

it upon is a plain

language reading of

811.712(b), correct?

A Yes.

Q And you would agree that reasonable minds

can disagree as to whether or not that clause

and

or I’m sony, that conjunction and relates

to the clause immediately in front of it or relates

to the entire sentence, correct?

MR.

GRAFT:

Objection

again. You’re asking

him to

make

a legal conclusion about a

statute.

MR. PORTER: well, I think

he’s

gone there

because he’s provided an opinion that the financial

assurances

don’t comply

with

that specific section

of the

statute.

MR. GRANT: I disagree with your

characterizing that as an opinion. It’s a

conclusion. There’s no reason to relitigate a case

that was tried before the board and appealed.

There’s no question about that paragraph. It’s

been done. His opinion on

it doesn’t really add

anything

to it.

MR. PORTER: I

understand your objection.

MR. GRANT: obviously he disagrees with you.

MR.

PORTER:

I don’t know if I got an answer

or not.

MR. GRAFT: All right.

MR.

PORTER:

could you read it back please

because I don’t recall if he answered or not or

just tell me if he answered.

(Whereupon the reporter then

read the requested testimony.)

Q Unless your attorney directs you not to

answer

—-

MR.

GRANT: You can go ahead and answer. You

can respond to the question.

Q Doyouwanthertoreaditonemoretime?

A Yeah, please.

(Whereupon the reporter then

read the requested testimony.)

A I

guess people can always disagree with

things. Whether or not I agree it’s reasonable or

not is a whole different thing.

Q Has Frontier failed

to honor

its bonds to

your knowledge?

A To my knowledge no.

Q And your last and final paragraph is that

CLC

and the city do not currently have any

financial assurance in place for the landfill.

9/20/2005

Page 47

Upon what do you base that considering the fact

that the city has offered to provide a guarantee

and in the IEPA’s opinion the bonds have been

extended automatically?

A Basically once the bonds got delisted

Frontier got

delisted, that the bonds

did not

satisfy the

requirements or the regulations as

adequate financial assurance. The city was

supposed to provide back in 2000 within 90 days

substitute alternate financial assurance. Five

years later we still don’t have that, nothing in

writing, no documents, no information.

Q Well, you said the city was to provide

that, but isn’t it true again that the city is not

the permitted operator?

A That is correct.

MR.

PORTER: I don’t have anything

further.

MR. GRAFT: clarissa, how are you doing?

MS.

GRAYSON: Sure.

MR. GRANT: I thought you’d walked out. That

was just a test. Now do you have some questions?

Do you want

take a quick break and ask a couple

of questions? What do you want to do?

MS. GRAYSON: A couple of minute break if you

Page 48

don’t mind.

MR. GRANT: No, I don’t because actually I’d

to go

get some more water.

MS. GRAYSON: Just

let me know when you guys

are back.

MR. GRANT: Okay.

(Whereupon a short break was

t.)

EXAMINATION CONDUCTED

MS. GRAYSON:

My name is Clarissa Grayson, and I’m the

attorney

for Community Landfill Company or one of

the attorneys.

A Okay.

Q Ihaveafew questions. Ihadahard

time hearing some of the testimony, but I think I

got most of

it. I want to go back to the

questions

that Mr. Porter was asking you regarding paragraph

nine of your affidavit.

A Okay.

You cited the

actual

regulations that you

were discussing or that he asked you about

regarding the

owner

operator requirements

for

posting financial assurance. Could you tell me

Page 45

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STEWART

HAINES

COURT REPORTING

Page

Page 48

Tht

Condensclt

1,

TAI,IARA C,

LEESMAN, Certified Shorthand

Reporter and Notary Public ofthe State of

Illinois, do hereby certify that BRIMi WfflTh came

before me on the 20th day

September, 2005, and

swore before me to testify to the truth, the whole

truth, and nothing but the truth regarding Iris

knowledge touching upon the matter in controversy.

I do further certify that F

did

take

stenographic notes of the questions propounded

to

said witness and his anewera thereto and that said

notes were reduced

to

typewritten form under my

direction and supervision.

I do further certify that said deposition

was taken at the Illinois Environmental Protection

Agency headquarters, 1340 North Ninth Street.

Springfield, fllinois.

do further certify that! am not

13 related in any way

to any of

the pasties involved

in this action and have is, interest in the outcome

14

thereof.

Dated at Springfield, Illinois this 23rd

day

of September,

2005, and given under my hand and

seal.

9/20/200

doesn’t post financial assurance, then the owner is

required to, is that correct?

A It means one or the

other shall provide

it.

Q So neither is required

to post

it, it’s

either one or the other?

A Either one or the

other?

Q Yeah, either one or the other.

A Yeah,

either one or the other can provide

it, or they both can provide it.

MS. GRAYSON: okay. I think that’s all I

have.

MR. PORTER: I have no follow-ups.

MR.

GRANT: I’m done.

MR. PORTER: I am going to

make a copy of some

of the or I have a copy of these documents. I only

marked two ofthem as an exhibit, Clarissa.

MS. GRAYSON: Okay.

MR.

PORTER: So

if you want a copy, I can copy

what I’m taking and I’ll send them over to you.

All right?

MS. GRAYSON: okay.

MR. PORTER: Great.

Thank you.

(DEPOSITION CONCLUDED)

BRIAN WHfi’E

CERTmIED SHORTHAND REPORItIt’S CERTIFICATION

3

4

7

S

Page 49

which section of the regulations you were talking

about?

MR.

GRANT: Do you mind if we refer

to the

reguiations? We don’t have it as an exhibit, but

we’ve got a book of them right here.

MS. GRAYSON:

Sure. I have a book also.

MR. GRANT: okay.

Yeah, basically you can look at 811.700.

It talks about the owner or operator. You can look

at 811.701. The owner or operator shall maintain

financial assurance equal to or greater than the

current cost estimate calculated pursuant to

Section 811.704 at all times. And it’s basically

throughout all of Subpart 0, financial assurance.

Q Okay. So when

it says owner or

operator

A Yes.

that means that neither

I mean

doesn’t that mean that neither

that the operator

also isn’t required to post it or the owner?

Could you repeat that question please?

Q Meaning the term owner or operator mean

either one of them shall maintain financial

assurance. So in other words, if the operator

17

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Tamara C. Lcdsman

Certified Shorthand Reporter

r~~r

Tamara C. Leesman

Nota,y Public, State of Illinois

MyComm~on ‘.O$/29nq~

Page

STEWART

HAINES

COURT REPORTING

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