TO:
Dated :
October 12, 2006
Charles F
. Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
P .O. Box 1389
Rockford, IL 61105-1389
815-490-4900
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PCB No . 03-191
NOTICE OF FILING
All counsel of Record (see attached Service List)
Please take notice that on October 12, 2006, the undersigned filed with the Illinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Respondent City of
Morris's Response to State's Motion for Interim Relief
.
PEOPLE OF THE STATE OF ILLINOIS,,
V .
Complainant,
COMMUNITY LANDFILL COMPANY, INC .,
an Illinois Corporation, and CITY OF MORRIS,
an Illinois Municipal Corporation,,
Respondents.
Respectfully submitted,
On behalf of the CITY OF MORRIS
Charles F. Helsten
One of Its Attorneys
This document utilized 100% recycled paper products .
RE
,EIVI
ED
OCT
1 6 2006
Pollution
STATE OF
Control
ILLINOISBoard
70492057,1 806289
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,,
)
CLERKS OFFICE
Complainant,
)
OCT
1 6 2006
v .
j
PCB No. 03-19~olut
COMMUNITY LANDFILL COMPANY, INC ., )
on
Control Board
an Illinois Corporation, and CITY OF MORRIS, )
an Illinois Municipal Corporation,,
)
Respondents .
)
RESPONDENT CITY OF MORRIS'S RESPONSE TO STATE'S MOTION
FOR INTERIM RELIEF
NOW COMES the Respondent, City of Morris, and for Response to the Complainant's
Motion for Interim Relief, states as follows:
I .
The Immediate Posting Of Financial Assurance In This Case Is Not Necessary And
Is Contrary To And Inconsistent With
This Honorable Board's Prior Orders On This
Matter.
In its Motion for Interim Relief, the Complainant alludes in general, vague and wholly
conclusory fashion as to the supposed need for the immediate posting of financial assurance for
closure/post closure care of the Morris Community Landfill .
However, the State presents no further evidence in support of its renewed request, over
and above what had already presented to this Board in its initial request for the exact same type
of relief at the time it filed its Motion for Summary Judgment over one year ago in this matter
.
In fact, as expressly conceded by the Complainant at paragraph 1 (2) of its present Motion
for Interim Relief, the exact same request as is now being advanced by the State on an
"expedited" basis was denied by this Honorable Board as part of its February 16, 2006 Interim
Order
. Since that time, the State has offered nothing more in support of this exact same request
for Interim Relief, other than attaching a October 4, 2006 Affidavit from Brian White in support
of its present Motion
. However, a review of Brian White's October 4, 2006 Affidavit more than
705045000 806289
amply reflects that this Affidavit does nothing more than simply parrot and regurgitate the
wholly conclusory allegations (not statements of fact) contained in the first Affidavit that Mr
.
White executed in support of the State's initial Motion for Summary Judgment some time ago .
The Respondent City of Morris would submit that this Honorable Board has had two
occasions over the course of the past year to enter the Interim Relief which has been repeatedly
asked for by the State had it thought it necessary to do so
. In fact, to the contrary, a review of the
Board's February 16, 2006 Order, as well as the Board's June 1, 2006 Order, demonstrates that
Board's proper belief and conviction that a hearing on all relevant matters and all relevant factors
should be held in this case before any Order as to the granting of any type of relief should be
made.
Again, had this Honorable Board believed the Request for Interim Relief repeatedly
sought by the State over the course of the past year or more was appropriate, it would have
previously entered an Order to that effect (as opposed to ordering a hearing on a proposed
remedy in this matter, so it could consider the positions of all sides, and could carefully consider
and weigh all relevant and appropriate evidence and factors which are presented in this case)
.
Moreover, as indicated in the 106 page deposition of Mr
. Devin Moose (the City's
landfill consultant who was deposed by the State at length in early August, 2006), there is no
present need for the posting of financial assurance
. As already noted by the City in paragraph 6
September 28, 2006 Response to Community Landfill's Motion to Cancel Hearing and
Complainant's Response and Opposition to Motion to Cancel Hearing, this Site is essentially
closed, and for the past two years, site characterization and closure activities have been
undertaken by the City (pending final resolution of the City's alleged status as a party
responsible for the posting of closure/post closure financial assurance) to assure that the human
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705045000 806299
health and/or the environment are not harmed . (See pps .70-75 and 76-80 of Mr
. Moose's
deposition) .
In turn, consistent with the finding of this Honorable Board at page 4 of its June 1, 2006
Order, the purpose of financial assurance obligations are then " . . .so that neither human health
nor the environment is harmed from the operation of a municipal solid waste landfill . . ."
. As
such, and again as noted by Mr
. Moose in his deposition testimony, since : 1) site characterization
and preliminary closure activities have been undertaken by the City (again pending final
resolution of the City's alleged status as a party responsible for the posting and closure/post
closure financial assurance), and 2) since, in turn, Mr . Moose has also indicated that no imminent
and substantial threat to the human health and/or the environment is presently posed by the
facility, again, the express purpose of the financial assurance provisions of the Act have been
squarely met.
In turn, accordingly, there is no immediate need for the posting of financial
assurance, and monies spent on the posting of interim financial assurance would be put to better
use in the undertaking of actual continued closure activities at the landfill
.
As noted by the City in its response and opposition to the Complainant's Interlocutory
Appeal of Hearing Officer Order, it is extremely interesting that while alleging in vague, general
and unsupported, wholly conclusory fashion that closure/post closure financial assurance is
needed to be posted to protect the human health and/or the environment, the State does not in any
way controvert or challenge the previous deposition testimony of expert witness Devin Moose
and, moreover, does not offer any sworn testimony by any other official of IEPA in opposition to
Mr. Moose's conclusions
. Again, based upon what appears to be the State's total deference (and
agreement with) Mr
. Moose's prior deposition testimony, any present allegation by the State that
the posting of interim closure/post closure financial assurance is necessary pending the
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conducting of a remedy hearing in this matter is totally unsubstantiated, and, in turn, totally
without merit .
II.
Hearing In This Matter
Will Not Be Indefinitely Delayed
In II paragraph 4 of its Motion for Interim Relief, the State refers to the "serious issues"
posed by the absence of the posting of interim financial assurance at the Morris Community
Landfill and uses these "serious issues" as its basis for urging this Board to enter an Order
requiring the posting of interim closure/post closure financial assurance . However, as noted
above, while the State constantly refers to the "serious issues" posed by the absence of the
posting of financial assurance in this particular case, interestingly enough, the State makes no
attempt to either enumerate these "serious issues", or explain why any such "serious issues" it
has identified do in fact directly impact the human health and/or the environment .
Again, the State conveniently ignores very significant and relevant portions of this
Honorable Board's Order of June 1, 2006
. Again, (as initially noted by the City in its September
28, 2006 Response), this Board's Order of that date goes further in noting that the Board must
interrupt the Act as it applies
" . . .in each individual instance ."
(Emphasis added) . As such, this
Honorable Board has wisely noted that it is presently unable to determine what (if any) form of
closure/post closure financial assurance is necessary to accomplish the purposes of the Act
(i
.e.,
protection of the human health and/or the environment) at this point in time, much less what the
amount of that financial assurance should be
. In this regard, it is also interesting to note that in
his deposition of early August, 2006, Mr
. Moose testifies in detail as to his belief that after a
thorough review of the last closure/post closure financial estimate posted by the Community
Landfill in this matter (totally some $17
.8 million dollars), he feels that such estimate is wholly
outdated, and is inaccurate and not reflective of present site conditions in a variety of respects
.
In essence, Mr . Moose's expert testimony confirms the feelings of this Honorable Board as
4
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embodied in its June 1, 2006 Order, namely that in order to determine what remedy/relief is
appropriate, as this Honorable Board has done at all times in the past, a full and complete hearing
should be conducted on the facts and circumstances as they exist in this "
. . .individual
instance . . .".
Moreover, hearing in this matter has not been " . . .indefinitely delayed . .
." as alleged by
the State in its Motion for Interim Relief . As noted by the Respondent, City of Morris in its
Response and Opposition to the Complainant's Interlocutory Appeal, CLC's Motion to Cancel
Hearing does in essence constructively suggest a replacement hearing date, that being after
March, 2007
. Again, since the record made in this matter thus far indicates that
: 1) the site is
presently closed and is undergoing preliminary closure activity, and 2) the State has offered
absolutely no evidence whatsoever that any imminent and substantial threat to the human health
and the environment exist in this case
. As such, no need exist for the conducting of a hearing,
much less the entry of an order providing for interim closure/post closure financial assurance at
this point in time .
III.
Entry Of An Order Providing For
Interim Financial Relief Ignores The Current
State Of Facts In This Case
In support of its response to III of the State's Motion for Interim Relief, the City
incorporates by reference the matter set forth in II of its Response above
. Moreover, the City
would again point out that as this Honorable Board (in its June 1, 2006 Order clarifying its prior
February 16, 2006 Interim Order) has indicated that the purpose of posting of financial assurance
for closure/post closure obligations are to ensure "
. . .that neither the human health or the
environment is harmed from the operation of a solid waste landfill
. . .", and as the
uncontroverted, unrebutted record made in this matter to date demonstrates that no potential
threat or harm exists, no "violation of the Act" is alleged by the State exist in this matter which
5
70504500v1806289
would justify the imposition of the drastic remedy of this Board entering an Order of Relief
without and full and complete hearing on all the facts and circumstances presented in this
particular case
.
IV.
The Complainant Has Made No Affirmative Showing Whatsoever That The Drastic
Remedy OF Imposition OF The Relief It Requests Is Necessary To Protect The State
In support of its response to paragraph 4 of the State's Motion for Interim Relief, the City
realleges and incorporates by reference the contents of paragraphs II and III of its Response set
forth above
.
WHEREFORE, the City of Morris respectfully requests that this Honorable Board deny
Complainant's Motion, and uphold in other respects Hearing Officer Bradley Halloran's Order
of October 3, 2006 (as well as all subsequent Orders issued by Hearing Officer Halloran), and for
such other and further relief as this Honorable Board deems appropriate and just
.
Dated :
October 12, 2006
Respectfully submitted,
On behalf of the CITY OF MORRIS
Charles F
. Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Charles F
. Helsten
One of Its Attorneys
This document utilized 100% recycled paper products
.
6
70504500,1 806289
A copy of the same was 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
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on October 12, 2006, she caused to be served a copy of the foregoing upon :
70415200,1 806 2289
Mr. Christopher Grant
Assistant Attorney General
Environmental Bureau
188 W. Randolph St ., 20th Fl.
Chicago, IL 60601
Mark LaRose
Clarissa Grayson
LaRose & Bosco, Ltd .
200 N . LaSalle, Suite 2810
Chicago, IL 60601
Ms . Dorothy Gunn, Clerk
Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
Bradley Halloran
Hearing Officer
Pollution Control Board
100 W. Randolph, Suite 1 I
Chicago, IL 60601
