BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
VS.)
PCB No. 03-191
(Enforcement-Land)
COMMUNITY LANDFILL COMPANY, INC.,
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
to: Mr. Mark La Rose
Mr. Bradley P. Halloran
La Rose
& Bosco
Hearing Officer
200 N. La Salle Street, #2810
Illinois
Pollution
Chicago, IL 60601
Control
Board
100 W. Randolph Street
Chicago IL 60601
Mr. Charles Helsten
Hinshaw & Culbertson
100 Park Avenue
Rockford IL 61105-1389
NOTICE OF FILING
PLEASE TAKE NOTICE that we have today,
October 18, 2005,
filed with the
Office of the Clerk of the Illinois Pollution
Control Board, by electronic filing, Complainant's
Response to
the City of Morris' Cross-Motion for Summary
Judgment, a copy of
which is attached and herewith served
upon you.
Respectfully Submitted,
PEOPLE OF THE STATE OF ILLINOIS
ax rel.
LISA MADIGAN
BY:
A A -
A stant Attorneys General
Environmental
Bureau
188 W.
Randolph St.,
2 0
th
Flr.
Chicago, IL 60601
(312) 814-5388
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARD
PEOPLE OF
THE STATE
OF ILLINOIS,
Complainant,
VS.)
PCB
No. 03-191
(Enforcement-Land)
COMMUNITY
LANDFILL COMPANY,
INC.,
an Illinois
corporation, and
the CITY
OF MORRIS, an Illinois
municipal
corporation,
Respondents.
COMPLAINANT'S
RESPONSE TO THE
CITY OF MORRIS'
CROSS-MOTION FOR
SUMMARY JUDGMENT
NOW COMES
the Complainant, PEOPLE
OF THE STATE OF ILLINOIS,
through
its attorney, LISA MADIGAN,
Attorney General
of the State
of
Illinois, and hereby
responds to Respondent's,
THE CITY OF
MORRIS' ("Morris")
Response to Complainant's
Motion for
Summary
Judgment,
and Cross-Motion
for Summary Judgment
("Morris
Motion").
In support
thereof, Complainant states
as follows:
I.
THE CITY OF MORRIS IS
'CONDUCTING A WASTE DISPOSAL
OPERATION',
AND IS THEREFORE
SUBJECT TO 415 ILCS
5/21(d) (2)
AND 35 ILL.
ADM. CODE 811.700(f).
1.
Respondent's denial
of liability and
Cross-Motion relies
entirely on its argument
that it is not 'conducting
a waste
disposal
operation' at the Morris
Community Landfill
("Landfill")
,
and therefore
is not subject to either
415 ILCS
5/21(d)
(2) (2004) or 35 Ill.
Adm. Code 811.700(f).
This argument
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
defies common sense, and is
legally incorrect.
2. The City
of Morris has actively participated in
Landfill decisions
since at least 1974.
Morris has been
permitted as either 'owner' or 'operator'
since that time,
operated the Landfill until 1982, contracted
with Respondent
Community Landfill Company
("1CLC"1) for day-to-day operations,
acted in concert
with CLC on
all
permitting and financial
assurance
issues, and financially benefitted from Landfill
operations. Clearly,
the heavy involvement of the City
of Morris
in activities at the Morris Community
Landfill subjects it to the
regulations governing 'conducting
waste disposal operations'.
a.
Permitting
3. The City of Morris has
applied for and obtained at least
thirty five (35) Illinois Environmental
Protection Agency
("Illinois EPA") permits (including
modifications) covering waste
disposal
at the Morris Community Landfill.
See: Second Affidavit
of Cristina Roque, attached hereto
as Exhibit K. Copies of two
of these
permits are attached to Complainant's
motion for Summary
Judgment
("Complainant's
Motion")
as Exhibits
A and B.
4. The Board should find that,
as a matter of law, holding
an Illinois
EFA permit for waste disposal at a landfill
constitutes
'conducting a waste disposal
operation'
,
thereby
subjecting
the Fermittee to regulation
under the waste disposal
provisions of the Act, and
the relevant Board regulations.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
5. Illinois EPA waste disposal permits are required for
those who conduct
waste disposal operations. Section 21(d) of
the Act, 415 ILCS 5/21(d) (2004),
provides, in pertinent part, as
follows:
Prohibited Acts. No person shall:
(d) Conduct any waste-storage, waste-storage, or waste
disposal operation:
(1) without a permit granted by the Agency or in
violation of any condition s imposed by such
permit ....
It is inconsistent to state that a party could obtain a required
waste disposal permit for a disposal site, but not conduct waste
operations. The application for and issuance of the permits
itself proves Respondent Morris, intent.
6. Permit No. 2000-155-LFM, allows both the City of Morris
and CLC to conduct solid waste disposal operations, specifically
approving:
Cc) Operation (i.e. waste disposal) within the
permitted boundaries off the existing landfill.
Complainant's Motion,
Exhibit A. po.2
7. Respondent Morris obtained
not one, but thirty five
such permits for the Morris Community Landfill, including
operating permits.
8. Morris attempts to mislead the Board by stating that
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
Illinois
EPA employee
Brian
White
"testified
that ...
the City
of
Morris
has
never been
the permitted
operator
of
the landfill.....
[Morris
Motion,
par.
8].
Mr.
White is
not responsible
for the
issuance
of
permits,
and could
not be expected
to have knowledge
of all
historical
permits
issued to
the City
of Morris.
However,
a list of
waste
disposal
permits
issued to
the Respondent
is
attached
hereto
as Exhibit
K, and
shows
that five
(5) permits
were
issued
to the
City of
Morris
as "owner
and operator".
9.
Moreover,
the City
of Morris
acknowledged
operating
the
Landfill
at its March
2,
2004 deposition.
Representative
deponent
John Enger
stated
that,
though he
did not
know exactly
when the
City opened
the
landfill,
the City
of Morris
operated
the landfill
until
1982,
and contracted
with
CLC because
it
had
been a 'financial
disaster'
for the
City.
Copies
of relevant
portions
of
the deposition
transcript
are attached
hereto as
Exhibit
L.
10.
Additionally,
the
City of
Morris submitted
interrogatories
to
Complainant
asking
for the
list
of Illinois
EPA permits
issued
to it
as 'owner'
and
'owner and
operator'.
The
information
provided
to
Morris in
response
was identical
to
that
contained
in Exhibit
K.
By asserting
that
an Illinois
EPA
employee
'testified'
that Morris
had
never been
a permitted
operator,
while
knowing
that
it had
obtained
permits
and operated
the Landfill,
the
City
of Morris
is attempting
to
mislead
the
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
Board.
b.
Joint Action
with Respondent
Community
Landfill
Co.
11.
The City of
Morris was
directly involved
in every
action
at the Morris
Community
Landfill which
resulted
in the
alleged violations.
It
contracted with
Respondent
Morris
Community
Landfill, applied
for and
was issued
joint waste
disposal permits,
provided
noncompliant
financial assurance
(in
the
form of a $10,081,630
Frontier
surety
bond), litigated
the
validity
of the Frontier
Bonds along
with CLC,
and failed to
replace
the Frontier
bonds with substitute
financial
assurance.
As owner,
it allowed
operation
of the landfill
from 2000
to the
present,
even after
the Frontier
Bonds were
determined to
be
noncompliant.
12.
Evidence
of the City
of Morris'
intention to
jointly
conduct waste
disposal operations
can
be seen in the
contract
addendum
negotiated
by the Respondents
in July,
1999. As
described
in PCB
01-48/PCB 01-49
(Consolidated)
,
this provision
provides,
in pertinent
part:
WHEREAS, while
the Lessor
and Lessee
disagree with
the IEPA
that...
.the proper financial
assurance
number
is $7,077,716,
in
an effort to
resolve the permit
appeals presently
pending
and the have
the significant
modification
permits
issued for
the landfill,
the Lessor
and Lessee
are willing
to post the
TEPA required
$17,159,346
in performance
bonds with
the
IEPA, and
have the TEPA
issue the significant
modification
permit
...
5. Lessor and
Lessee will
file an application
with
the
TEPA
to reduce the
financial assurance
from $17,159,346
to
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
$7,077,716 after
the significant modification
permit
applications
have been approved
for Parcels A and
B. if
the TEPA agrees to reduce
the financial assurance
to
$7,077,716
or less, then the Lessor's
$10,081,630
bond will
be
terminated and Lessee
shall have no further
responsibility
for it.
If the IEPA denies
the
applications
to reduce the
bond amount, the
lessor and
lessee shall lointly
file an appeal
with the Pollution
Control Board
and prosecute the same
through the Illinois
court, if necessary..
.
(emphasis supplied)
Complainant's Motion,
Exhibit D, pp. 27-28
13.
Clearly, waste
disposal operations
at the Morris
Community Landfill
were a joint enterprise..
The City of
Morris
took
extraordinary steps
to obtain issuance
of the significant
modification
permits, including
providing over ten million
dollars
of 'financial assurance',
and litigating
permit denials
through
the Third District Appellate
Court. Respondent's
claim
that it merely
acted as title
owner of the land on
which the
Landfill operates
is clearly false-it
was an active participant
at the
Landfill.
C.
Financial
Benefits
14.
The City also benefitted
financially
from operations at
the Morris Community
Landfill. The full
amount of royalty and
tax
payment during
the relevant period
is now being sought
in
discovery
from Respondent CLC.
However, documents
produced by
the
City of Morris show
such payments being
made. Attached
hereto as
Exhibit M is a document
showing payment
of over
$20,000.00 to
be due for waste
disposal during
November, 2001.
In addition, the City
has received free and/or
reduced-rate waste
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
disposal at the Landfill
[Complainant's Motion,
Exhibit
J, at 21-
22].
d. The Berger Case is Clearly Distinguishable
from our Case
15. In
People v.
Wayne Berger and Berger Waste Management,
PCB 94-373 (May 6, 1999),
the Board found that landowner Berger
Waste Management ("1BWM"1) did
not 'conduct a waste disposal
operation' by its mere ownership
of the landfill. In
Berger,
operator Wayne Berger had
transferred ownership of a landfill
after being cited for operational
and financial assurance
violations. However,
no permit was transferred by Wayne
Berger,
and BMW was never issued any Illinois EPA-issued
permits. The
Board
pointed to this fact in its ruling: "Significantly,
all
permits for
the landfill were issued to Wayne
Berger".
Berger,
slip op. at 8.
16. In our case, the City of Morris has been
covered by
thirty five separate permits (including
modifications) f or waste
disposal activities
at the Morris Community Landfill. Included
are four permits
issued to Morris as "owner and operator". The
two
Permits at issue in this case contain
numerous requirements
for the 'permittee', without specifying
'owner' or 'operator'.
Both Respondents are bound by these
conditions.
17.
Additionally, the City did not acquire the Landfill
after the violations
occurred. It has owned the Morris Community
Landfill
since its original development. And, as shown above,
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
Morris has
been actively involved in Landfill activities
throughout.
18. Clearly, the Berger decision should be limited to the
facts in that case, and not be read to limit the application of
415 ILCS 5/21(d) (2) (2004) only to
permitted landfill operators.
II.
THE ACT SHOULD BE CONSTRUED TO EFFECT ITS PURPOSE AND AVOID
ABSURD RESULTS
19.
Illinois
Courts are directed to construe statutes to
avoid absurd and unreasonable results. See, e.g.
Mulligan v.
Joliet Regional Port District,
123 Ill. 2d 303, 313 (1988)
.
The
Board has also determined that statutes are to be construed
according to their intent and meaning.
Lionel Trepanier et al,
v. Speedway Wrecking Company,
PCB 97-50 (January 6,
2000, slip
op. at 9)
.
In this case
the Board noted:
"Where the spirit and intention of the legislature in
adopting the acts are clearly
expressed and their objects
and purposes are clearly set forth, the courts are not
confined to the literal meaning of the words used, when to
do so will
defeat the obvious intention of the legislature
and result inr absurd consequences not contemplated by it.",
Trepanier,
quoting
People ex. rel. Barrett v. Thillens,
400
Ill. 224 (1948).
20. The goals of the general assembly are expressed in
Section 2 of the Act, 415 ILCS 5/2 (2004)
,
which provides, in
pertinent part:
(b) It is the purpose of this Act, as more specifically
8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
described
in later sections,
to establish a unified,
state-wide program
supplemented by
private remedies, to
restore,
protect and enhance
the quality of the
environment,
and to assure that
the adverse effects
upon the
environment are
fully considered
and borne by
those who cause
them.
Cc)
The terms and provisions
of this Act
shall be liberally
construed so as to effectuate
the purposes
of this Act
as set forth
in subsection (b)
of this Section....
Reviewing
courts liberally construe
the provisions of the
Act.
See, e.g.
People
v. Conrail Corp,
251
Ill. App. 3d, 550
(4
1
Dist.
1993);
People v.
State Oil Company,
352 Ill. App. 3d
813 (2d Dist
2004).
21. Respondent Morris
is asking the Board
to interpret the
Act
and regulations in a way
that would lead to an
absurd
outcome. Two of
Morris' contentions
are particularly
unreasonable:
Its narrow
construction
of the term 'conduct'
,
and
its insistence
that the financial
assurance regulations
contained
in Part 811,
Subpart G, do not
apply to owners of
Landfills.
a. The Term 'Conduct
a Waste Disposal
Operation' Should
be
Broadly
Construed.
22. Morris urges the
Board to adopt a restrictive
interpretation
of 'conduct', and
limit its application
only to
Respondent CLSC, the
permitted operator.
On the facts of this
case, such an interpretation
would be
absurd. The City of
Morris
has
obtained thirty five
Illinois EPA waste
disposal permits.
The permits
contain numerous conditions
applicable to
both the
owner and operator.
9
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
23. Morris submits that it is merely the
"owner of/fee
title holder to property that has been used for
waste disposal
activities for Community
Landfill Company" (Respondent's Motion,
par. 7)
.
This
statement is incorrect. Respondent
not only owns
the land, it owns the Morris Community
Landfill. From its
initial development until
1982, it also operated its landfill,
using City employees.
See: Exhibit L, at 9-10 Because it was a
'financial disaster'
it decided to lease its landfill to
Community Landfill Company.
However it never conveyed title to
the Morris Community Landfill, and
has continued to be bound
under all subsequent permits.
Moreover, as described above,
it
has remained heavily involved in landfill matters,
including
providing surety bonds and its appeal of permit
denials.
24. Taking Respondent's
argument to its logical conclusion,
Section 21(d) of
the Act, and all regulations enforceable
thereunder, would only apply
to a person, present at the
landfill, who is physically involved in disposing
of waste. it
would also allow for permitted owners to
set up a shell
'operator' entity, and personally avoid all of the
consequences
of violating the
Board's landfill management regulations. Such a
consequence would
be absurd, and contrary to the intent of the
General Assembly.
b. Respondent's Interpretation Conflicts With
the Subpart G
Regulations.
25. Finding that
permitted owners do not 'conduct a waste
I0
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
disposal operation' would render the financial assurance
regulations meaningless.
26. Part 811, Subpart G, of the Board regulations
applies
to the Morris Community Landfill,
and includes 35 Ill. Adm. Code
811.700(f), violations of which are alleged in the complaint
against both
Respondents.
Section 811.700 provides,
in pertinent part,:
(a) This Subpart provides procedure by which
the owner
or operator
of a permitted waste disposal facility
provides financial assurance satisfying the
requirements of Section
21.1(a) of the Act.
(b) Financial assurance may be provided, as
specified
in Section
811.706, by a trust agreement, a bond
guaranteeing payment,
a bond guaranteeing payment
or performance,
a letter of credit, insurance or
self-insurance. The owner or operator shall
provide
financial assurance to the agency before
the receipt
of the waste.
Section 811.706
of Subpart
G
provides, in pertinent part as
follows:
(a) the owner or operator of a waste disposal site may
utilize any of the mechanisms listed
in
subsections
(a) (1) through (a) (10) to provide
financial assurance for closure and postclosure
care, and for corrective
action at an MSWLF unit.
An owner or operator of an MSWLF unit shall also
meet the requirements of subsections (b)
,
Cc)
,
and
(d)
.
The mechanisms are as follows:
Cc) The owner or operator
of an MSWLF unit shall
provide financial assurance utilizing one or more
of the mechanisms listed
in subsection (a) within
the following dates:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
1)
by April 9, 1997, or such later date granted
pursuant to Section
811.700(g),
or prior to
the initial
receipt of solid waste, whichever
is later,
in the case of closure or post-
closure care;
(emphasis supplied)
27.
The provisions of Subpart
G
expressly apply to owners
or operators. obtaining
financial assurance is mandatory (i.e.
"shall")
.
In our case, neither 'owner' City of Morris
or
'operator' Community
Landfill Company have provided compliant
financial assurance. See: Brian White affidavit,
Complainant's
Motion,
Exhibit C.
28. Clearly,
the provisions of Subpart
G
must be
interpreted to require
owners and operators to provide financial
assurance, although either party
may arrange it. Otherwise, both
owners and operators could claim that they had
no mandatory
obligation because the other party was bound-an
absurd and
unreasonable
result.
29. The requirements
for "owners or operators" contained
throughout Subpart
G
would be rendered meaningless by
construing
811.700(f) to apply only to
permitted operators. As the Subpart
G
regulations require financial
assurance of "owners or
operators", and prohibit 'persons' from conducting
waste disposal
operations without financial assurance, the
regulations
implicitly include both owners and operators within
the group
12
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
that
'conducts
waste disposal
operations'.
30.
Respondent's
assertion
that
permitted
owners
of
landfills
do not conduct
waste
disposal
operations,
and therefore
are not bound
by
either Section
811.700(f)
or
415 ILCS
5/21(d)
(2004),
requires an
unreasonable
and absurd
interpretation
of these
sections.
III. THE
CITY OF
MORRIS HAS
NEVER ARRANGED
FOR,
OR OFFERED
TO
ARRANGE
FOR,
COMPLIANT
FINANCIAL
ASSURANCE
31. The
City of
Morris misstates
Complainant's
argument
regarding
the
application
of collateral
estoppel
in this
case.
Complainant
simply
asks the
Board to
recognize
its previous
ruling
that the
Frontier Bonds
submitted
by
the Respondents
do
not
comply
with 35 Ill.
Adm. Code
811.712.
The affidavit
of
Brian
White
shows that
neither
Respondent
has substituted
any
of
the ten mechanisms
listed in
35 Ill.
Adm. Code
811.706.
32.
The City
of Morris
again
attempts
to mislead
the Board
by
stating
that it has
offered
Illinois
EPA financial
assurance
in the
form of a
local government
guarantee.
In fact,
the City
of Morris
has steadfastly
refused to
provide compliant
financial
assurance
in any
form.
33.
To be compliant,
a financial
assurance
mechanism
must
meet
the requirements
of 35 Ill.
Adm. Code
811.706,
and fulfil
the
specific
requirements
of
the relevant
regulatory
section
[e.g.
811.712
for performance
bonds]
.
The amount
of financial
assurance
must total
at least
$17,427,366.00
for
the two
landfill
13
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
parcels, and must be updated annually [retroactive to 2000],
pursuant to 35 Ill. Adm. Code 811.701. Complainant's Motion asks
the Board to order the Respondents to provide financial assurance
meeting these requirements.
34. The City of Morris twists the meaning of 'local
government
guarantee' by claiming that it 'can and would' provide
such financial assurance
[Morris Motion,
par. 19].
35. There is no question that a Local Government Guarantee
meeting the requirements of 35 Ill. Adm. Code Section 811.717
would comply
with 811.706 and 811.700(f). Section 811.717
provides,
in pertinent part:
Section 811.717 Local Government Guarantee
An owner or operator may demonstrate financial assurance for
closure, post-closure, and corrective action, as required by
Section 21(a)
of the Act and 811, Subpart G by obtaining a
written guarantee provide by a unit of local government.
The guarantor shall meet the requirements of the local
government financial test in Section 811.716, and shall
comply with the terms of a written guarantee
An owner who fully complies with 811.716 and 811.717 has the
option to 'pay or perform' closure/post closure/corrective
action, or
establish a fully funded trust fund per 811.710.
36. 35 Ill. Adm. Code 811.716 imposes a number of
requirements on municipalities. First there is a financial
standard to be met (811.716(a)). Additionally, the municipality
must disclose its closure/post closure liability in its financial
14
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
report (811.716(b) and comply with record
keeping and reporting
requirements (811.716(c)). Further, the amount of closure/post
closure costs that may be secured
is limited and based on its
annual revenue
(811.716(d)).
37. Compliance with the Local Government Financial
Test was
repeatedly emphasized by Illinois EPA's Blake Harris at his
deposition
(Morris Motion,
Exhibit A, pp. 52, 54, 56-60.)
38. The City of Morris has
not described financial
assurance
compliant with Sections 811.716 and 811.717. As
described in
paragraphs 38-39 of its Motion, the City's proposal
is to:
*1 ...in fact comply with Section 811.706... .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 res
erve 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.",
However, the City of Morris notes:
"...ITEPA has advised the City that the form would not be
accepted as adequate financial assurance"
The City of Morris offers no affidavit, or written
communication with Illinois EPA, to back
up any claim that it is
willing to provide financial.
assurance compliant with 811.716 and
811.717. If such an offer is now made in earnest, the
City of
Morris
should not object to a Board order requiring compliant
financial
assurance, as sought by Complainant.
39. However,
the 'financial assurance' described above
15
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
constitutes
no more than the same
proposal rejected by
the Board
in PCB 01-48/01-49.
In that case,
the Respondents sought
to
reduce the amount of
financial assurance
by
$10,000,000,
through
their agreement to
treat leachate from
the Morris Community
Landfill,
free or at a reduce
cost. Complainant's
Motion,
Exhibit
B, at 26. In rejecting
this proposal,
the Board
noted
that, in
the event of a failure
of Morris'
POTW, and treatment
was not covered
by financial
assurance, the
burden of treating
leachate could tall
to the State.
Cornplainant's Motion,
Exhibit
D, at
29.
40. Respondent's
'offer' is
to 'perform', by
treating
leachate
at its POTW, and provide
compliant financial
assurance
of approximately
$7,000,000.00.
However, Respondent
did not [and
perhaps can not] agree
to comply with
the Local Government
Financial Test contained
in 35 Ill.
Adm. Code 811.716.
It would
be illegal for Illinois
EPA to agree
to such a proposal,
which
would
violate the Act
and Subpart G regulations.
IV. THE CITY OF
MORRIS' VIOLATIONS
WERE WILFUL AND REPEATED
41. From
at least August 8,
2000 until the present,
no
compliant financial
assurance has
been in place for
the Morris
Community Landfill.
Since December
5, 2002, when
the Illinois
Supreme Court
refused to hear Respondent's
appeal,
there has been
no
question that the Frontier
Bonds would have
to be replaced
with
compliant financial
assurance.
And yet neither Respondent
16
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
has
done
so to
the date
of
filing
of this
Response.
42.
Not only
have
the Respondents
failed
to
provide
financial
assurance,
they
continued
to
cause
and allow
the
disposal
of
waste
at the
Morris
Community
Landfill.
The City
of
Morris
continued
to
accept
royalties
from
this
disposal.
Also,
it
is clear
that both
Respondents
have avoided
the cost
of
providing
compliant
financial
assurance
during
this
period.
43.
Despite
having
been
rejected
by the
Board
in its
attempt
to
substitute
treatment
of leachate
at
its POTW
for
$10,000,000.00
of financial
assurance,
the
City
of Morris
continues
to
attempt
to justify
this position,
demonstrating
an
absence
of good
faith.
44.
Despite
its
landfill
ownership,
multiple
waste
disposal
permits,
and the
clear
language
of Subpart
G applying
to
'owners
and operators',
the
City of
Morris
claims
that it
is exempt
from
Section
21(d) of
the Act,
415
ILCS
5/21(d)
(2004)
,
and thereby
also exempt
from
waste
disposal
regulations.
Complainant
believes
that
this position
represents
a failure
to
accept
responsibility,
and also
demonstrates
a
lack
of good
faith.
45.
The financial
assurance
requirements
of Subpart
C
are
clear
and
understandable.
Prior
Board and
Appellate
Court
decisions
relating
to the
Landfill
have
settled
any
question
as
to
the amount
and
type
of financial
assurance
required
of
the
Respondents.
Where,
as in
our case,
Respondents
continue
to
17
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
cause and allow landfill
operations in the absence of any
financial assurance, the Board should
find that such violations
are knowing
and wilful.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board grant
its Motion for Summary
Judgment against
the Respondents, COMMUNITY LANDFILL COMPANY and
the CITY
OF MORRIS, deny Respondent CITY OF MORRIS' Cross-Motion
for
Summary Judgment, and issue an order:
1. Finding that
the Respondents have violated 415 ILCS
5/21(d) (2) (2004), and 35 Ill. Adm. Code Sections 811.700(f)
and
811.712;
2. Finding that the Respondents' violations
were wilful,
knowing, and/or repeated;
3. ordering the Respondents to cease and
desist from
transporting
and depositing any additional material at the Morris
Community
Landfill until they are in full compliance with
their
Permits, and the Board's financial assurance regulations;
4. Requiring the Respondents to immediately provide
financial assurance as required by the Act, Part
811, Subpart G,
of the Board solid waste regulations, and the
Respondents'
Permits;
5. Requiring the Respondents to update
the
closure/postclosure
costs in accordance with the Subpart
G
regulations, Permits No. 2000-155-LFM,
2000-156-LFM, and
18
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
modifications
thereto;
6. Ordering
the Respondents to initiate closure of parcels
A & B of the Landfill;
and
7. Setting a date for
hearing on the issue of civil
penalty.
BY:
Assistant Attorneys General
Environmental
Bureau
188 W.
Randolph St.,,
2 0
th
Flr.
Chicago,
Illinois 60601
(312) 814-5388
(312) 814-0609
19
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
EXHIBIT
K
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
SECOND
AFFIDAVIT
OF CRISTINA
ROOUE
I, Cristina
Roque, after
being duly
sworn on oath,
state that if called
upon to testifyr
in this
matter, I would competently
testify as
follows:
I .
I am a Environmental
Protection
Engineer
for the Illinois Environmental
Protection
Agency
("Illinois EPA").
2.
I have
been employed
with the Illinois
EPA since
1992.
3.
1 received
a Bachelor
of Science Degree
in Engineering
Management
in December,
1991,
from the University
of Illinois.
4.
1 am a
member of the
Illinois EPA, Permit
Section.
My responsibilities
include the
review of pen-nit
applications for
constmuction, operation,
and closure
of non-hazardous
solid waste
management
facilities.
5.
1 am familiar
with the
landfill generally
known as the
Morris Community
Landfill
("Landfill")
located
in Morris, Illinois.
6.
The following
permnits were
issued to
the City of Morris
as "Owner
and
Operator":
Permit No.
1974-22-DE
Permit No.
1974-22-OP
Supplemental
Permit No.
78-1148
Supplemental
Permit No. 1980-160
Supplemental
Permit No.
1989L'0O5-SP
7.
The following
permits
were issued
to the City of
Morris as "Owner":
Permit
No. 1974-22-DE
Permit No. 1974-22-OP
Supplemental
Permit No. 78-1148
Supplemental
Permit
No. 1980-160
Permit No. 1974-22-OP
(Permit Transfer)
Permit
No. 1974-22-DE
(Permit Transfer)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
Supeeta
emtNo-932
Supplemental
Permit
No.
1983-126S
Supplemental
Permit No.
1983-1725-SP
Supplemental
Permit
No. 1988-0253-SP
Permit
No.
I1990-048-DE/OP
Supplemental
Permit
No. 1 990-523-SP
Supplemental
Permit
No.
1991-11
4-SPX
Supplemental
Permit
No.
1991-195-SP
Supplemental
Permit
No.
199 1-262-SP
Supplemental
Permit
No. 1
993-066-SP
Supplemental
Permit No.
1991-1
14-SPX (Log.
No.
1993-120)
Permit
No. 1990-048-DE/OP
(Log
No.
1993-119)
Interim
Permit
No. 1993-401-IN
Supplemental
Permit
No. 1994-3
88-SP
Supplemental
Permit
No.
1996-196-SP
Permit
Nos. 1 974-22-DE
and 1974-22-OP
(Log
No. 1996-218
Supplemental
Permit
No.
1996-240-SP
Supplemental
Permit
No. 1996-196-SP
(Log No.
1997-213)
Supplemental
Permit
No. 1999-175-SP
Permit
No. 2000-155-LFM
Permnit
No.
2000-155-LFM
Modification
No. 1
Permit
No.
2000-155-LFM
Modification
No.2
Permit
No. 2000-155-LFM
Modification
No.3
Permnit
No.
2000-155-LFM
Modification
No.4
Permit
No. 2000-156-LFM
Permit
No.
2000-156-LFM
Modification
No.1
Permit
No. 2000-156-LFM
Modification
No.2
Permit
No. 2000-156-LFM
Modification
No.3
FURTHER
AFFIANT
SAYETH
NOT
Cristina
qu
Subscribed
and Sworn
to
before
me
this
Jjh
day of
~ 2005.
OT PUBLIC
..
OFFICIAL
SEAL.
i
CATHERINE
R.
HUNTER
2
NOTARY
PUBUIC,
STATE OFaMNOS
'YCOMMISSION
EXPIRES
3-14
2W8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
EXHIBIT L
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
Page
1
Page
3
1
S48478
1
LaROSE
&
BOSCO,
LTD.,
by
2
2
MR.
MARK
A.
LaROSE,
3
BEFORE
THE
ILLINOIS
3
734
North
Wells
Street
4
POLLUTION
CONTROL
BOARD
Chicago,
IL
60610
5
6
PEOPLE
OF
THE
STATE
OF
4
(312)
642-4414
ILLINOIS,
5
Appearing
telephonically
on
behalf
of
7
Community
Landfill
Company,
Inc.
Complainant,
)6
vs.
-)
PCB
03-191
9
8
COMMUNITY
LANDFILL
)9
LO
COMPANY,
INC.,
an
L
10
Illinois
corporation,
and)
11
[I
THE
CITY
OF
MORRIS,
an
)
12
Illinois
municipal
1
12
corporation,
1
14
13
Respondents.
)15
14
16
15
1
16
Deposition
of
JOHN
D.
ENGER,
called
as
a
w7itness
by
the
Complainant,
pursuant
to
the
1
18
provisions
of
the
Illinois
Code
of
Civil
19
19
Procedure
and
the
rules
of
the
Supreme
Court
20
20
thereof
pertaining
to
the
taking
of
depositions
21
21
for
the
purpose
of
discovery,
before
Deborah
L.
22
22
Fabritz,
C.S.R.,
R.P.R.,
Notary
Public
in
and
2
23
for
the
County
of
DeKalb,
State
bf
Illinois,
2
24
taken
at
Morris
City
Hall,
320
Wauponsee
Street,
24
Page
2
Page
4
1
Morris,
Illinois,
on
the
2nd
day
of
March,
A.D.
1
DEPOSITION
OF
JOHN
D.
ENGER
2
2004,
at
the
hour
of
3:25
p.m.
2
3
4
PRESENT:
3
EXAMINATION
5
OFFICE
OF
THE
ATTORNEY
GENERAL
4
By
Mr.
Grant
5
STATE
OF
ILLINOIS,
by
5
By
Mr.
LaRose
65
MR.
CHRISTOPHER
J.
GRANT
and
6
By
Mr.
Grant
74
7
MR.
JOEL
J.
STERNSTEIN,7
8
Assistant
Attorney
Generals
Environmental
Bureau
North
8
198
West
Randolph
Street
10
20th
Floor
9
Chicago,
IL
60601
10
Respondent
Exhibit
No.
1
15
11
(312)
814-5388
2
12
Appearing
on
behalf
of
the
Complainant;
11
Respondent
Exhibit
No.
2
2
and
12
Respondent
Exhibit
No.
3
36
13
14
HINSHAW
&
CULBERTSON,
by
13
Respondent
Exhibit
No.
4
37
15
MR.
CHARLES
F.
HELSTEN,
14
16
100
Park
Avenue
1
Rockford,
IL
61105
1
17
(815)
490-4900
16
is
And
1
19
LAW
OFFICES
OF
SCOTT
M.
BELT
&
ASSOCIATES,
P.C.,
1
by
18
20
19
MR.
SCOTT
M.
BELT,
21
20
suite
206
21
22
105
E.
Main
Street
Morris,
IL
60450
22
23
23
Appearing
on
behalf
of
the
City
of
24
Morris;
and
2
1
(Pages
1
to
4)
SONNTAG
RE
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LTD.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
1
don't
know
what,
what
day
it
was,
but
Page~
9
them?Pae
1
2
1962,
I believe.
2
The
only
reason
I
ask
that,
I've
had
3
Q
The
original
contrac.t,
the
contrac.t
between
3
People
in
this
area
interchangeably
say
Parcel
4
which
parties?
4
A
is
the
east
Side
and
other
people,
no,
it's
S
A
With
Community
Landfill
and
the
City.
5
the
west
side.
6
0
Okay.
Let
mne
restate
my
quest
ion.
6
So
we
should
probably
have
an
7
Did
--
for
the
Morris
Cormounity
Landfill
7
understanding
so
that
Mr.
Enger
and
you
and
the
8
or
what
is
now
known
as
the
Morris
Community
a
rest
of
us
aren't
tracking
on
the
wrong
-
9
Landfill,
do
you
know
when
that
first
began
9
generally,
I
call
Parcel
A
the
eas
t
side
and
tO
operations,
not
necessarily
--
just
when
10
Parcel
B
the
west
side;
is
that
--
Li
COplnunity
Landfill
Company
became
involv1ed
in
11
MR.
LaROSE:
Me,
too.
~2
it?
12
MR.
GRANT:
So
Parcel
A
is
the
-3
A
Could
you
repeat
that?
13
east
side?
.4
0
Sure.
Do
you
know
when
the
landfill,
I
assume
14
MR.
HELSTEN:
Parcel
B
would
be
.5
that
it
was
always
called
the
Morr.is
Community
15
the
west
side.
.6
Landfill,
that
may
be
incorrect,
but
do
you
16
BY
MR.
GRANT:
.7
know
how
long
the
Morris
Coirrunity
Landfill
has
17
0
Okay.
You
mentioned
a
Contract.
I
think
.8
been
operating
under
anybody's
auspices?
18
You're
talking
about
a
contract
with
the
.9
A
I don't
know
but
--
I
don't
know.
19
Corrnunity
Landfill
Company?
:0
I
know
that
prior
to
that,
the
City
20
A
Yes.
I
tried
to
operate
the
landfill
themselves
and
it
21
0
Correct
me
if
I'm
wrong,
I
think
you
said
it
2
was
a
disaster,
financial
disaster.
And
that
22
was
1982?
3
was,
it's
been
out
there
--
I've
lived
in
23
A
I
believe
so.
4
Morris
49
years,
we've
always
had
a
landfill
at
24
0
Okay.
Do
you
recall
the
circumstances
of
why
Page
10
Page
12
1
that
site.
1
the
City
of
Morris
wanted
to
contract
with
2
0
Okay.
And
did
you
Say
that
at
some
point
the
2
another
party
to
--
3
City
operated
the
landfill?
3
A
It's
my
recollection,
I
was0
on
th
Council
in
4
A
Prior
to
1962.
4
'81,
the
City
was
losing
several
hundred
5
It's
my
recollection
that
they
did.
5
thousand
dollars
a
year.
We
had
a
new
6
Q
was
it
operated
with
City
employees?
6
administration
come
in
in
'81,
and
they
took
a
7
A
Yes.
7
look
at
it
and
thought
it
would
be,
you
know,
8
0
Okay.
Do
you
know,
at
that
time,
when
it
first
8
more
profitable
to
the
City
if
it
were
leased
9
began
operations
prior
to
1982,
what
type
of
9
out
to
a
Private
concern.
0
refuse
Or
waste
was
disposed
of
at
the
Morris
10
Q
Okay.
Do
you
know
how
Community
Landfill
1
Connunity
Landfill?
11
Company
was
selected?
2
A
General
municipal
waste
as
far
as
I
know.
12
A
No.
3
0
Let
me
Just
stop
right
here
and
tell
you,
the
13
0
Okay.
Do
you
know
who
the
owners
were
of
Morris
Community
Landfill's
divided
into
two
14
Community
Landfill
Company
at
approximately
5
parcels,
Parcel
A
and
Parcel
B.
15
that
date?
In
other
words,
about
1982.
Unless
I
specifically
mention
Parcel
A
16
A
I
believe
it's
the
Pruims
or
was
the
Pruims.
7
Or
Parcel
8,
I'm
talking
about
both.
17
There
was
--
I
think
the
first
manager
out
3So
when
I
ask
you
about
the
Morris
18
there
was
a
man
by
the
namea
of
--
I
don't
3
Community
Landfill
--
19
recall
his
name.
I
know
he's
from
Joliet,
but
A
Okay.
20
I
don't
recall
his
name.
Q
Jumping
ahead
to
what
you
Just
said
--
21
0
Okay.
Mr.
Enger,
are
you
familiar
with
MR.
HELSTEN:
Chris,
for
purposes
22
Illinois
EPA
permits
and
permit
applications
I
of
clarification,
Parcel
A
is
which
side
of
the
23
regarding
the
Morris
Community
Landfill?
road
and
parcel
--
which
do
you
want
to
call
24
A
I
have
seen
some
of
them.
3
(Pages
9
to
12)
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EXHIBIT
Ml
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
CITY
OF
MORRIS
Date
?Jr~~r
91
0fl
320
WAUPONSEE
STREET
MORRIS,
ILLINOIS
60450
PHONE:
815/942-4026
Community
Landfill
13901
S.
Ashland
Ave.
r
1!Riverdale,
IL
60827.
TERMS:
20
2(404.-21
PLEASE
DETACH
AND
RETURN
WITH
YOUR
REMrrTANCE
-
arC~~.aoeo~o~~o~~,ono
c
'
~
.~
,
n
'oo.-
,,
oon~~
00000o~a~n..,.....
....
Date
Charges
and
Credits
Balance
Balance
Forward
4
1121102
Royalties
due
to
City
of
Morris
under
new
contract
-'November
1,
2001
thru
November
30,
2001
Loads
under
2
c.y.
-
O
loads
@
$
3.
15
each
0
00
Loads
2
to
4
c.y.
-
88
loads
@
$
4.81
each
423
28
Loads
5
to
10
c.y.-
75
loads
@
$
7.99
each
599
25
Loads
over
10
c.y.
-
486
loads
@
$39.88
each
19,381
68
AMOUNT
DUE............$20,404
21
C
flIHIIWtG.
CITY
MOMS.
OF
IL
MORRIS
Thiank
tjou4
PAY
LAST
AMOUNT
IN THIS
COLUMN
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF THE STATE
OF ILLINOIS,
Complainant,
vs.)
PCB
No. 03-191
(Enforcement-Land)
COMMUNITY
LANDFILL
COMPANY,
INC.,
an Illinois
corporation,
and
the CITY
OF MORRIS,
an
Illinois
municipal
corporation,
Respondents.
CERTIFICATE
OF SERVICE
I, CHRISTOPHER
GRANT, an
attorney,
do certify
that
I caused
to be served
this
18th day
of October,
2005,
the
foregoing
Response
to
the City
of Morris'
Cross-Motion
for Summary
Judgment,
and
Notice of
Filing,
upon the
persons
listed
on said
Notice
by placing
same
in an envelope
bearing
sufficient
postage
with
the United
States
Postal
Service
located
a 100 W.
Randolph,
Chicago
Illinois.
CHRISTOPHER
GRANT
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 18, 2005
