BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
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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.
NOTICE OF ELECTRONIC FILING
PLEASE TAKE NOTICE that we have today, August 5, 2009, filed with the Office of the
Clerk
of the Illinois Pollution Control Board, by electronic filing, Complainant's Response to
The City
of Morris's Motion for Reconsideration
BY:
Respectfully Submitted,
Assistant Attorneys General
Environmental Bureau
69
W. Washington Street., 18
th
FIr.
Chicago, IL
60602
(312) 814-5388
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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.
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PCB No. 03-191
(Enforcement-Land)
RESPONSE TO CITY OF MORRIS'S MOTION FOR RECONSIDERATION
NOW COMES
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
ofthe State of Illinois, and Responds to the City of Morris's
("Morris's") Motion for Reconsideration.
I.
INTRODUCTION
The City of Morris ("Morris" or "City") requests both revision and reconsideration of the
Board's June
18,2009 Opinion and Order. However, the Board's Order should stand as issued.
Morris's argued basis for revision is based on false representations, for which it should be
sanctioned. Morris' requests for reconsideration are based on argument
of the same unique and
self-serving interpretations
of the Board regulations that were considered and rejected in the
Board's grant
of Summary Judgment, denial of Morris's Motion to Reconsider Summary
Judgment, and the June 18,
2009 Order.
1
II.
ILLINOIS EPA REJECTED MORRIS'S PROPOSED COST REVISIONS IN
OCTOBER,
2007
Morris's request that the Board modify its Order to allow it to submit its revised cost
estimate, and its request that the Board delay the provision
of financial assurance is entirely
based
on its representation that Illinois EPA never acted on its 2005 and 2007 revised
closure/post-closure cost estimates. This representation is absolutely false.
As is well known to
Morris and its counsel, Illinois
EPA clearly and unequivocally rejected these estimates in
October,
2007.
At hearing in this case, Morris expert witness Devin Moose stated that Shaw
Environmental had prepared cost estimates and Sig-Mod permit renewal submissions in 2005
and July, 20071, and that as the time of hearing, Illinois EPA was still reviewing the
applications
2
• However, on October 22, 2007, only six weeks after hearing, Illinois EPA
rejected the proposed cost revisions (See: Complainant's Exhibit 1).
Illinois
EPA's rejection of the 2005 and 2007 proposed cost estimates was communicated
in a draft permit denial, and could
not possibly be more
cle~.
The draft denial acknowledges
Shaw's proposed permit revisions from 2005 and 2007\ and was sent by Christine Roque, whom
ITr., 9112/07, p. 115
2
As the Board noted in its decision, Shaw had prepared these estimates in 2006, but did
not submit them to Illinois EPA until two months before the scheduled hearing. June 18, 2009
Order,
p.13.
3Illinois
EPA permit conditions are negotiated through the use of' draft denial' letters,
which point
out the changes and additions in an application necessary to obtain approval.
4Complainants Exhibit
1, p. 2
2
Electronic Filing - Received, Clerk's Office, August 5, 2009
Mr. Moose previously acknowledged as the appropriate Illinois EPA permit contact5. On
Exhibit 1, p. 5, Illinois EPA advises Morris' consultant that the revised cost estimates were
defective because groundwater treatment cost were not included, and because the cost estimate
did not include
100 years of leachate treatment.
The Respondents have known
of the "100 year leachate third party cost" requirement for
years. In fact, their initial permit application had been rejected after they left this factor out
of
their cost estimate. Following the Respondents appeal in case No. PCB 01-48/01-49
6
,
the Board
upheld Illinois
EPA's requirement that 100 years of leachate treatment be secured. Thus, having
totally ignored Illinois
EPA's prior rejection, and also having ignored the Board's April 5, 2001
opinion affirming Illinois EPA's position, Morris cannot have been surprised at th Illinois EPA's
October 22,2007 denial.
The City
of Morris's request for a change in the Board-ordered timetable for providing
financial assurance in the approved amount, and the timetable for providing a revised cost
estimate must be rejected. The Board's requirement
of a revised cost estimate submission
within
120 days is reasonable and should be affirmed. Further, the Board should sanction Morris
for their blatant misrepresentation
of a material issue in this case.
III.
STANDARD FOR RECONSIDERATION
Motions to reconsider are limited to newly discovered evidence, not available at the time
of hearing, changes in law, or pointing out errors in the Board's previous application of existing
5Tr., 7112/07, p. 94. The court reporter misspelled "Roque" using the phonetic spelling
"Rokay)
6PCB 01-48/01-49 (4/5/01). Three days of hearing were held on this issue and other
permit conditions.
3
law
7
•
Newly discovered evidence is evidence that was not available at the first hearings. A
Motion to Reconsider is not an opportunity to re-try a case: litigants should not be allowed to
lose, and only then gather evidence to show that a court erred in its
ruling
9
•
The reasons for this
are clear; as explained by one Court:
"[clivi! proceedings already suffer from too many delays,
and the interests of finality and efficiency require that the trial courts not consider such late-
tendered evidentiary material, no matter what the contents
thereof may be ,,/0.
In no event should
'newly discovered' evidence be allowed without a reasonable explanation
of why it was not
available at the time
of the original hearingll. Moreover, reconsideration on the basis of new
evidence is not warranted unless the newly discovered evidenc.e is
of such a conclusive or
decisive character as to make it probable that a different result would be reached
12.
IV.
THE "FACTS" CONTAINED IN THE MORRIS'S EXHIBITS ARE NOT NEWLY
DISCOVERED EVIDENCE AND SHOULD NOT BE CONSIDERED BY THE
BOARD
Morris attempts to supplement the record with six new exhibits, which include new
opinion testimony from
Shaw Engineering representative Jesse Varsho and City Auditor William
Crawford, and statements by persons who were named as witnesses by Morris but never called.
7People
v.
Community Landfill Company, Inc. And the City of Morris,
PCB 03-191 (June
1,2006).
SCompton
v.
Country Mut. Ins. Co.,
382 Ill. App. 3d 323, 331 (15t Dist. 2008)
9Garnder
v.
Navistar International Transportation Corp.,
213 Ill. App. 3d 242, 248 (4th
Dist. 1991).
IOld., at pp.248-249
IlDelgatto
v.
Brandon Associates, Ltd.,
131 Ill. 2d 183, 195 (1989).
12
Patrick Media Group
v.
City of Chicago,
255 Ill. App. 3d 1, 8 (15t Dist. 1993)
4
Morris provides no reasonable explanation why this information was 'unavailable' at trial. This
'evidence is improper and should not be considered by the Board.
The Board should also note the fundamental unfairness
of all of the 'newly discovered'
testimony. None
of this information has been subject to discovery or tested by cross
examination. Thus, this information in inherently unreliable.
1..
Morris Exhibit A: Affidavit of John Enger
Morris City Clerk John Enger was named by Morris as a witness in this case in its
Witness
&
Exhibit List filed with the Board on September 28, 2006. After the original hearing
was delayed, Morris submitted its second Witness and Exhibit List on August
29,2007. This
second list did not include Mr. Enger, and he was not called as a witness at hearing. There is no
explanation whatsoever as to why his testimony was unavailable, and Exhibit A (and Morris's
arguments related thereto) should be stricken.
2.
Morris Exhibit B: Affidavit of Larry D. Good
Morris provides no explanation whatsoever regarding their failure to call Mr. Good at
hearing in this matter, but his testimony relates to cost information between
2001 and 2005, well
before the hearing. Exhibit B (and Morris's arguments related thereto) cannot be considered
'newly discovered evidence', and should be stricken.
3.
Morris Exhibit
C: Affidavit of Jesse Varsho
Mr. Varsho was named as a witness by the City
of Morris in its second witness
disclosure, but was not called as a witness at hearing. His statements include his 'professional
opinion" that current conditions do not constitute an 'immediate and imminent and substantial or
material threat'. This opinion was obviously not disclosed prior to hearing, or at any time until
5
the filing of the Motion to Reconsider.
Use of Exhibit C in reconsideration is an unfair surprise. However, the information is
also not relevant to this case. Nothing in the State's case is dependent on an 'imminent and
substantial endangerment' .
4.
Exhibit D: Affidavit of William J. Crawford
Mr. Crawford testified extensively at hearing, both on direct and cross examination.
The only thing 'newly discovered' is the changes in various funds since the September,
2007
hearing. Complainant does not believe that this should be considered as appropriate 'newly
discovered evidence'. Moreover, Crawford's 'opinions' are based on the hearing testimony
of
Edward Pruim, one of the owners of Respondent Community Landfill Company. The State is
denied the opportunity
of discovery or cross examination on this new testimony, and is therefore
prejudiced. Mr. Crawford's affidavit should be stricken as improper and not considered by the
5.
Exhibit E: 2002 Memorandum
Exhibit E is clearly improper. This document was not previously disclosed, despite
extensive discovery between the parties. Moreover, there is no explanation as to why this
2002
document was 'newly discovered', or why it was unavailable for use at hearing. Exhibit E, and
all arguments based on this document, should be stricken.
\3Most
of the costs of litigating this enforcement case are being born by taxpayers: either
of the State or the City of Morris. Because Mr. Crawford's overlate testimony is improper, and
to avoid a complete re-hearing on new evidence, Complainant will not stop this case to take
additional deposition testimony on Mr. Crawford's
'new opinions'. If Morris honestly believes
that providing the required amount
of financial assurance is impossible or unreasonable, it should
have filed a petition for adjusted standard. In such instance, it would appropriately have the
burden
of proof in demonstrating impossibility through competent evidence.
6
Electronic Filing - Received, Clerk's Office, August 5, 2009
Complainant also notes that testimony at hearing from Illinois EPA inspectors showed
that the City
of Morris was dumping its water treatment sludge (illegally) at the Landfill in the
summer
of 2007. Complainant's Exhibit 2
14
, shows continued dumping of sludge into 2009.
Obviously the 2002
memo, if genuine, has no probative value whatsoever, and is therefore
Improper.
6.
Exhibit F: Resolution No. R-99-6
Exhibit F is part
of a 1999 resolution by the City of Morris. There is no explanation as to
its 'unavailability' prior to
hearing, or as to why a reasonable effort could not have resulted in its
production at hearing.
It is also incomplete, although a full version of this resolution was
entered into evidence in one
of the Permit Appeals filed by the City of Morris and Community
Landfill Company (PCB
01-48/01-49). Complainant therefore believes that the Board can take
notice
of this late-filed document, although it hardly supports Morris's claims.
V.
MORRIS'S SUBSTANTIAL INVOLVEMENT IN LANDFILL OPERATIONS
HAS ALREADY BEEN DECIDED BY THE BOARD
Throughout this case, Morris has attempted to portray itself as a passive actor in Landfill
operations
l5
. It has so argued in its 2005 Cross Motion for Summary judgment, in its 2006
Motion to Reconsider the grant of summary judgment in favor of the State, and in its Post-
14Affidavit
of Mark Retzlaff. This affidavit, which shows continued dumping as late as
April,
2009, is offered to counter Morris' continued arguments that it was not 'conducting a
waste disposal operation'.
15In the two permit appeals related to financial assurance, the City of Morris took a much
more aggressive position, promising to Gointly with Community Landfill Company)
"file an
appeal with the Pollution Control Board and prosecute the same through the Illinois court [sic],
if
necessary .... See:
PCB 01-48/01-49 (AprilS, 2001, slip op. at 28). Morris' denial of involvement
came only after losing in the Appellate and Supreme Court in
2002.
7
Hearing Brief. The Board has consistently rejected Morris' arguments, finding that the Morris's
" ... decision making authority, financial involvement, history of litigation and responsibility for at
least one aspect
of the site operations, the treatment of leachate, collectively qualifies as
'conducting a waste disposal operation'
"16.
In
its Motion, Morris continues to reargue the same points over again. Morris does not
provide any
"newly discovered evidence" and has not pointed to any errors of interpretation of
the law. Complainant does not need to remind the Board of the substantial evidence of Morris's
involvement in Landfill operation, but
will briefly respond to the gist of Morris argument.
1.
Morris Financially Supported Continued Operations
Besides treating leachate at the Landfill at no cost to Community Landfill Company, the
City
of Morris provided, in its own name, a closure/post-closure surety for 58% of the total
financial assurance at the
Landfill
17
•
The City attempts to downplay this action, claiming that it
" .. .lent its name as principal on a $10.0 million bond,,18. Morris also claims that "[i]n exchange
for the increased bond amount the IEPA agreed to give CLC the
SigMod Permit,,19.
The facts show that the City didn't just 'lend its name', it took out a bond for over ten
million dollars, incurring the same amount
of potential liability on its own behalf. And Illinois
EPA did not just
"give CLC a permit", it issued a permit to the City of Morris, as owner, and
Community Landfill Company, as operator. The permit was issued on application by
both
16Board order denying Morris's first Motion to Reconsider (June 1,2006, slip op. at 4)
17$10,081,630 out of a required total of $17,427,366
18Morris Motion to Reconsider, p. 24
19Id.
8
parties. Without Morris taking on this Bond liability, the SigMod Permit would never have been
issued, and the Landfill would have had to shut down. Instead, Morris stepped forward and
assumed 58%
of the potential liability to keep operations going. Morris's involvement in the
financial assurance obligations was substantial, and in accordance with their status as an
'operator'
of the Landfill.
2.
Involvement In Permit-Related Litigation
Beginning in October, 1999, Morris began challenging Illinois
EPA decisions.
Eventually, it joined in four Landfill permit appeals filed with the
Board
20
. Each of these permit
appeals were filed by the City
of Morris and Community Landfill Co. for the purpose of
establishing the conditions under which they would be allowed to conduct waste disposal
operations at the Landfill.
Morris was not being 'lead' by Community Landfill Company in these appeals. In each
instance, Morris was represented by their own attorneys. In each case, Morris was taking an
independent legal position as to the applicability
of the regulations to Landfill operations. There
is no evidence that Morris was 'compelled' to defend CLC's position: in every instance it had the
opportunity to stake out its own position, based on its evaluation
of its own interests.
Two appeals,
PCB 01-48/01-49 and PCB 01-170 proceeded to Board hearings, each of
three full days. In both cases, Morris filed motions to reconsider the Board's decision. In both
cases, its motions were denied. Following denial
of its Motion to Reconsider in PCB 01-170,
CLC and Morris appealed to the Appellate Court, 3d District, and subsequently to the Illinois
2°PCB 00-065/00-66 (filed October 5, 1999);PCB 00-118 (filed March 8, 2000); PCB 01-
48/01-49
(filed September 7, 2000); PCB 01-170 (filed August 16,2001).
9
Electronic Filing - Received, Clerk's Office, August 5, 2009
Supreme Court. Throughout, Morris was represented by its own counsel.
In these four permit appeals, Morris sought to establish the conditions under which it, and
CLC, would conduct waste disposal operations at the Landfill. The Board correctly recognized
that the City
of Morris is an 'operator' of the Landfill.
3.
Morris's Continued Waste Disposal Activities
In addition to its extensive involvement in financial, permitting and litigation, Morris has
literally
'conducted a waste disposal operation' by continuing to dump its waste in Parcel
A.
Morris has done so despite the complete absence of financial assurance, and despite the fact that
there is no operating permit in place
21
.
At the
2007 hearing, Illinois EPA inspector Mark Retzlaff testified to fresh dumping of
Morris's wastewater treatment sludge on Parcel A of the Landfill. This was observed during an
inspection on June
26, 2007
22
. As shown by Complainant's Exhibit 2, he also observed waste
water treatment sludge at Parcel A on April
29, 2009, and personally witnessed a City of Morris
truck dumping material
on Parcel B23.
Morris tacitly admits this continued dumping in its Motion. On page 16, it states that
" ... the Order effectively closes the landfill for operations" and on the following page
states that
"[i]fthe landfill is permitted to operate, the majority of those funds will go to
21 In PCB 0 1-170 the Respondents unsuccessfully appealed the denial of an operating
permit for Parcel
A.
As testified to by Christine Roque, Illinois EPA has issued no operating
permit for Parcel A since that time. Tr.,
9111107, p. 219.
22Tr.,
9111/07,
p. 58
23Complainant's Exhibit
2, paragraphs 10-13. Exhibit 2 is offered as newly discovered
evidence, but also to counter Morris' repeated claim
of passive land ownership.
10
CLC .... ". Unbelievably, Morris argues for continued operations, despite the fact that:
1) Parcel B is overheight and 13 years overdue for closure;
2) There is no financial assurance for closure or post-closure care; and
3) No operating permit is in place for dumping
of any waste whatsoever.
Clearly the Board's findings that Morris conducted waste disposal operations, and was in
fact an 'operator'
of the Landfill, were correct.
VI.
THE BOARD'S REMEDY IS NECESSARY AND APPROPRIATE
1.
The Board Correctly Ordered Dumping to Cease Immediately
The Respondents were notified
by Illinois EPA of the absence of compliant financial
assurance in November,
2000, but still have not complied with the financial assurance
regulations. Instead they make frivolous arguments about the Bonds 'continued validity' and
false statements regarding Illinois EPA's rejection
of their 2005 and 2007 cost estimates. There is
no operating permit for the disposal
of waste at the Landfill. However, the Respondents have
continued dumping illegally through at least April 29,
2009. The Board's direction that
dumping stop immediately is necessary to keep a bad situation from getting worse, and was
required to correct ongoing violations. The relief granted by the Board is therefore appropriate.
2.
The Penalty Assessed Against Morris is Necessary to Accomplish the Purposes of
the Act
The Board awarded Complainant only 27%
of the civil penalty it had requested against
Morris. Complainant had argued that, because owners and operators are jointly liable for
providing financial assurance, the economic benefit
of noncompliance ("BEN") from failure to
provide financial assurance should also be recovered against Morris. In recognition
of the City'S
11
municipal status, the Board only assessed a penalty in the amount of $399,308.98, representing
recovery
of dumping royalties from 2001 through 2005, a period when the Respondents were in
knowing violation, and should not have been accepting waste.
Using 'newly discovered evidence' (to which Complainant has objected), Morris claims
that it spent more money on engineering fees and leachate treatment than it gained in royalties,
and therefore did not make a
"profit,,24. This argument is frivolous, and
t~tally
misrepresents the
policy behind the recovery
of BEN in enforcement cases.
First, the claimed engineering costs and the leachate treatment costs are not related to the
ongoing violations.
Since 1974, the City of Morris has applied for and obtained at least 50
Illinois EPA Permits for the Landfi1l
25
. All of these permits contained requirements and
conditions. The City's current permit contains numerous testing, monitoring, and maintenance
requirements, which would certainly require the expenditure
of funds on engineering and
maintenance
26.
Also, both the SigMod permits and Board regulations require that leachate from the
Landfill be treated. The
SigMod Permit for the Landfill requires leachate treatment for 100
years after closure. In an effort to secure approval of the SigMod application, Morris and CLC
agreed that the City would treat this leachate at no cost.
The requirements
of testing, maintenance, reporting, and leachate treatment (and the
24Morris Motion, p. 26
25Tr., 9/11107, p. 214
26See: Complainant's Hearing Exhibit No. 12, (2000 SigMod Permits issued to Morris
and CLC for
Parcels A
&
B of the Landfill).
12
associated costs) would have been the same whether or not Morris continued to cause and allow
dumping after November,
2000. However, had Morris not allowed dumping to continue, it
would not have received $399,308.98 in dumping royalties. By causing and allowing dumping
to continue in violation
of the financial assurance regulations, Morris conducted dumping
operations in violation
of Board regulations, and thereby violated Section 21 (d)(2) of the Act,
415 ILCS 5/21(d)(2)
(2008). Recovery of the economic benefit of noncompliance requires
recovery from Morris
of at least $399,308.98 through civil penalty27.
Recovery ofthe economic benefit of noncompliance is required under the Act. However,
in this case, it also serves to deter violations by other landfill owners. There would be no
deterrence
if landfill owners were allowed to keep royalties generated while continuing to operate
in knowing noncompliance.
In his concurring opinion, Board Member Blankenship expressed concern on the hardship
imposed on City taxpayers by imposition
of the Civil Penalty. This concern is understandable,
and large penalties against municipalities are, thankfully, rare. Unfortunately, Morris has long
demonstrated a disregard for the requirements
of the Board landfill regulations and the Act which
now threatens to impact the resources
of all Illinois taxpayers.
When landfill regulations were significantly strengthened in the early 1990's, Morris had
the opportunity to close the Landfill under the less stringent regulations then in place.
It
decided
to continue operations. Instead
of working with the State to address the serious problems which
later arose, it joined forces with CLC
.in opposition to permit conditions which had been required
27The Board should note that Complainant only requested recovery of royalties through
2005. Morris' arguments complaining of the Board's order stopping waste disposal suggests
that royalties continued after that date.
13
by Illinois EPA for the protection of local residents and the environment. Morris litigated in
concert with CLC in four
Permit appeals, seeking review to and through the Illinois Supreme
Court. After losing on these issues, it did nothing to correct the financial assurance violations.
However, it continued to allow illegal dumping at its landfill, and continued to accept dumping
royalties.
Through four permit appeals and six years
of this enforcement case, the State of Illinois
has expended considerable resources in litigation. However, the
State is not seeking recovery of
these costs, despite its right to do so pursuant to 415 ILCS 5/42(f) (2008). Nor is it seeking
recovery
of all royalties, only those from 2001 through 2005. However, the State continues to
believe that recovery
of at least this measure of the economic benefit of noncompliance from
Morris is both appropriate and necessary to accomplish the purposes
of the Act.
3.
Correcting the Violations Requires that the Respondents Post $17,427.366 in
Financial Assurance, and Update their Cost Estimate Without Further Delay
The Board properly ordered the Respondents, jointly and severally to post financial
assurance according to the most recent approved cost estimate: $17,427,366.00, and in a form
compliant with 35 Ill. Adm. Code 811.700
et seq.
Posting at least this much financial assurance
is a necessary first step to correct the ongoing violations.
There is currently no financial assurance
of any kind for closure and post-closure of the
Landfill. At hearing Morris argued that
it
'could have' put up a local government guarantee for
at least part
of the required amount. However, it has never done so. Without the Board's order,
enforceable in court, Morris is unlikely
to either post financial assurance in any amount, or accept
its responsibilities as Landfill owner.
14
Morris and CLC were found in violation on February 16,2006, but have taken no steps to
provide any assurance that the Landfill will ever be properly closed, or any assurance that Illinois
taxpayers will not be stuck with closure and long-term care. The Board's order that financial
assurance be provided within
60 days is the minimum necessary to assign this responsibility
where it is due: on the owners and operators who profited from Landfill operations over many
years.
Equally reasonable is the Board's requirement that the financial assurance be updated
within
120 days. The original cost estimate from the Respondent's SigMod application has not
been effectively updated since 1999. Annual updates are required by
35 Ill. Adm. Code Sections
811.
701 and 811. 705. Annual updates are also required under Section X of the Respondents'
Sigmod Permits. The Board's June 18,2009 Order did nothing but enforce the law as it stands.
4.
John Enger's and William Crawford's
"Newly Discovered Evidence" are Baseless
and Unreliable
As already noted, the
State objects to argument based on Morris's Exhibit's C
&
D, the
Affidavits
of John Enger and William Crawford. Mr. Enger, though originally named; did not
testify at hearing. Mr. Crawford testified that the City was in a strong financial position
28
. As
reported it their
2006 audit, the City had net assets of$35 Million
29
.
Despite having been found in violation for failure to provide financial assurance in early
2006, at hearing Mr. Crawford testified that the City planned to go forward with land acquisition
28Tr.,
9112/07,
p. 54
29Tr.,
9/12/07,
p. 56
15
and capital project expenditures totaling approximately $30 Million
30
. The City had a legal debt
margin limit
of over $18 Million, but was well below its limie 1 .
Mr. Crawford's new
"opinion" that the City cannot afford to provide financial assurance,
is totally based on his
"assumption" that surety bonds would require "80-100%
collateralization". He provided no such testimony at hearing. And he provides no facts to
support this opinion is his Affidavit.
He does not state that the City has contacted any bonding
companies, or sought surety bonds or any other type
of financial assurance. Obviously, the City
never even checked.
As Morris admits in its Motion, this "assumption" is totally based on the hearing
testimony
of Edward Pruim, co-owner of CLC, in which he testifies about what it would have
taken to replace the Frontier Bonds
32. However, Edward Pruim was not seeking bonds on behalf
of the City, or using the City's credit position, but on behalfofCLC. By that time, CLC had
been decapitalized by its owners. As a Subchapter
S corporation with long term liabilities,
Edward
Pruim and Robert Pruim had allowed the financial condition of CLC to worsen
substantially. Mr.
Pruim stated that "there was minimal income ... there was a little revenue, but
that was . .it was hard making our payments,,33. They had numerous outstanding bills that they
30Tr.,
9112/07,
pp. 32-33
31The 2006 year end report showed only $1.6 MM in debt, but Mr. Crawford reported that
another $7.4MM had been used up in
2007, resulting in a debt of approximately $10MM as of
the date of hearing. Tr.,
9112/07,
pp. 59-60.
32Morris Motion, p.17. Morris also cites the testimony of their engineer witness, who
agreed that full collateralization might
be required if bonds were going to be called
'immediately'. This testimony is complete speculation, and accordingly, worthless.
33Tr.,
9/12/07,
p. 163.
16
could not pay, and there was nothing "left over" for financial assurance
34
. The company had
gone from
150 operators to only seven or eight employees
35
.
It
is unsurprising, based on the
financial condition
of CLC, that surety companies would refuse to expose themselves to millions
of dollars of CLC's liability without substantial collateral
36
.
Incredibly, Morris used this testimony regarding
CLC's attempts as the sole basis for
Enger and Crawford's 'newly discovered evidence' that the City
of Morris would also be
required post almost all
of the financial assurance amount as collateral to obtain bonds
37
.
It
is
impossible to believe that the City
of Morris, with the full faith and credit of Morris's assets and
all
of its statutory taxing authority, would also be required to post "80-100% collateral,,38.
Crawford's conclusions are clearly an invention. Neither Enger nor Crawford checked on
financial assurance bonds on behalf
of the City. Neither reviewed all the possible alternatives for
financial assurance. They simply relied on the testimony
of an officer of a company they now
claim is
'insolvent'-the least reliable and least credit-worthy source possible--- as a benchmark
for their opinions on the potential bonding requirements to the City
of Morris. These opinions,
though convenient for the City's argument, are totally unreliable.
34Tr.,
9112/07,
p. 164
35Tr.,
9112/07,
p. 163
36Complainant also notes that CLC had been able to secure more than $17MM of Frontier
bonds in 1999 and
2000 using 'cash collateral' of only $200,000, or 1.2% of the principal amount
[Tr.,
9112/07,
p. 166], and paid premiums of about $200,000 annually for this coverage [Tr.,
9112/07,
p. 161].
37Morris Motion, p. 17
38It seems more logical that the City's collateral requirements would be at or less than the
1.2% previously
obtained by CLC.
17
Electronic Filing - Received, Clerk's Office, August 5, 2009
Fortunately, Illinois law provides a statutory remedy to ensure that the City will be able to
comply with the Board's June
18,2009 Order. There is no evidence that the City of Morris has
reached its taxing limit (in fact all the evidence shows that the City is in very good financial
condition). But even
if it has reached its limit, Illinois Law allows for a local government to
issue an additional tax levy to pay the costs
of "insurance and risk-management programs,,39.
Therefore, there is no question that the City
of Morris will be able to provide compliant financial
assurance, in the form
of an insurance policy or surety, to satisfy the requirements ofthe Act,
regulations, and the requirements
of the Board's June 18,2009 Order.
Finally, if, after diligently checking on all the options for providing financial assurance in
the amount required by the regulations and the Board's June 18,2009, Morris reasonably
believes that it is unable to meet the requirements
of the financial assurance regulations, it can
take advantage
of the regulatory relief mechanisms contained in 35 Ill. Adm. Code Part 104.
It
can provide such evidence as it believes supports its position, subject to appropriate scrutiny by
Illinois
EPA and the Board. This relief has been available the Morris throughout the nine year
period
of its noncompliance, and will continue to be available. However, Morris will have to
decide that it wants to work 'within the system' instead
of continuing to deny its responsibilities.
VII.
MORRIS'S REQUEST TO FREEZE COLLECTION OF FRONTIER BONDS
The Board should summarily reject Morris's request that the State be prohibited from
prosecuting its claim against Frontier Insurance Company in Rehabilitation. The Board has
already directed that funds recovered
(if any are ever recovered) be credited against the required
39
745 ILCS 10/9-107 (Copy attached as Exhibit 3)
18
Electronic Filing - Received, Clerk's Office, August 5, 2009
amount of financial assurance. Pursuant to 415 ILCS 5/21.1 (c) (2008), funds recovered on
these claims are to be deposited into the Landfill Closure and
Post-Closure Fund for use in
closure
ofthis Landfill. Moreover, it is questionable whether the Board has the authority to
order the State to stop its action on the bond claims. However, the Act ensures that any funds
recovered will be used for the appropriate purpose. Since no financial assurance is now in place,
anything recovered will be very helpful.
VIII. CONCLUSION
Morris has failed to satisfy the standards necessary for a Motion to Reconsider, and the
Board must deny Morris' request. Morris fails to point out errors in the Board's previous
application
of the law, and simply continues to repeat the arguments rejected by the Board during
the Summary Judgment phase of this case, and after hearing on remedy.
Nor has Morris brought forward any
"newly discovered evidence" that would justify a
modification of the Board's June 18, 2009 Order. Morris Motion for Reconsideration of the
Pollution Control Board's Order of June 18,2009 must be denied.
RESPECTFULL Y SUBMITTED
19
Electronic Filing - Received, Clerk's Office, August 5, 2009
BY:
PEOPLE OF THE STATE OF ILLINOIS
by
LISA MADIGAN,
. Attorney General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement! Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau North
JENNIFER
C~RG~
TOMAS
Environmental Bureau
Assistant Attorneys General
69 W. Washington Street,
#1800
Chicago, IL 60602
(312)814-5388
(312)814-0609
20
Electronic Filing - Received, Clerk's Office, August 5, 2009
07/30/2009 10:40
2175243291
IEPA PERMIT
PAGE 02/06
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021' NORtH
GIIANO AV!NUE
EAST, P.O.
Box
19276,
SPRINGFIE~O,
ILLINOIS
62794-9276 - ( 217) 782-3397
JAM~S
R.
THOMPSON
CENTER, 100 WEST
RANDOLPH, SUITE
11.300,
CHICAGO,
Il 60601 :... b 12)
B 14-6026
Roo. R. BlAGOJEVICH, GOVERNOR
DOUCLAS P. SCOTT, DIRECTOR
TELECOPIER COVER PAGE
I
V
PLEASE PRmT IN BLACK INK ONLY!
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DATE:
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TIME: _____ .......-___
PLEASE DELIVER THESE
to;p
AGES
(INCLUDING THIS' COVER PAGE) TO:
NAME: _.
J.;:...;:e5S:::=::'
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CITY: __________
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FIRM OR LOCATION PHONE NUMBER:
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FIRM OR LOCATION FAX NUMBER: __
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FROM: __
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SENDER'S PHONE NUMBER: d:-Vl. -
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Q'1
IF YOU DID NOT RECEIVE ALL OF THE PAGES. OR THE PAGES ARE D:..LEGmLE,
PLEASE INFORM US IMMEDIATELY.AT THE PHONE NUMBER LISTED BELOW.
OUR TELEco.PIERNVMBERIS (217) 524-3291
OUR PHONE NqMBERIS (21"7) 524-3300
!EPA OFFICE USE ONLY
TELECOPY DISPOSITION (CHECK ONE)
K
RETURN ro"ORIGINATOR AFTER SENDING
_
DISCARD
cc: ___________________________
~
EXHIBIT
,
).
COfflp/4-ivrr rJ'T.s
I
1
R.Cl~KFORO
- 4302
North Main Street, Rockford, IL
61103
-
(815)
987.7760 •
Des
PLAINES -
9S11
W.
Harrison Sr., Des.Plalnes,
Il 60016
~
(847)
294 •• 000
11,
r
I
ELCIN -
59S South Stale. Elgin.
I~
60123 -
C847)
608-3131
•
PePRIA -
~415
N. Unlyerslty 51.. Peoria, IL 61614 -
(309) 693.5463
.
JRE"U OF LANO • PEOR/A -
'620 N. Univer51ty St.. Peoria,
IL 61614 -
(309)
693.5462 •
CHMr\PIIICN
~
2125
SOUl"
Fir$(
Street. ChampaiSn,
IL 61820 _
(217)
278.S800
SPRINCflElO
~
4.500 S.
Sixth
Street
Rd., Springfield.
IL
62706
- (217) 786.681lZ
•
C:nll'N~IhII.
_ ?MQ
'''~II ~"ft~'
,.._10. .. ... . .• -_.
.
07/30/2009 10:40
2175243291
IEPA PERMIT
PAG~
03/06
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1 021
NO~TH
GRANO AVENUE
EAST,
P.O. Box 19276,
SPRINGFIElD, ILLINOIS
62794-9276
~
(
217)
782-3397
JAMES
R. THOMPSON CeNTER, 100
WEST
RANDOLPH, SUITE 11.300, CHICACO, Il
60601 -
(312) 814-6026
ROD
R.
BLAOOJEVICH, GOVERNOR
DOUGLAS
P.
SCOTT, DIRfc'l'OR
OWNER
City of Monis
Attn: Mayor Richard Kopczick
320 Wauponsee Street
Moms, Dlinois 60450
Re:
0630600001 .- Grundy County
Community Landfill
~
Parcel A
Log
No. 2005-157
Pennit File
Dear Mayor Kopczick
and Mr. Prujm:
QPERATOR
Community Landfill Company
Attn=~.Rob~J.PrttUn
1501 S. Ashley Road
Morris. Dlinois 60450
O\t~f1
This will acknowledge receipt of your application for a significant modification of the above
referenced
solid waste management site dated April 28, 2005 and May 26. 2005 and received by
the
Dlinois EPA on April 29, 2005 and May
27~
2005, respectively. Also, additional infonnation
dated
November 22,2005 and July 12, 2007received by the Dlinois EPA on November 23,2005
and July 13, 2007, respectively.
Your pennit application, referenced as Application Log No. 20.05-157 is denied. Application
Log
No. 2.0.05-157 requests the renewal of Penn it No. 2000-155-LFM.
You
have failed to provide proof that granting this permit would not result
in
violations of the
TIlinois Environmental Protection Act (Act). Section 39(a) of the Act [415 n.CS 5/39(a)]
requires
the Dlinois EPA to provide the applicant with specific reasons for the denial of pennit.
The following reason( s) are given:
(Denial points 1
R8
are outstanding deficiencies from the November 22, 20.05 addendwn that
had
not been met.)
1)
No operational plan expected during the next pennit term was submitted to support the
cost estimates.
2)
Section 811.1 04 (c) and special condition 1.11 requires all stakes and monument marking
property boundaries and pennit areas be inspected annually and surveyed no less than
once
per 5 years by a professional1and surveyor. No 5- year monument survey submitted
with the application.
ROCKFORO - 4302
North
Main Street, Rockford, Il 61103 -(815)
987.7760
•
DES
PLilINES - 951 1
W.
Harrison St.,
Des
PI~ines,
IL
60016 -
(847) ;Z9404000
EI.CIN -
595 South
State, Elgin, Il 60123 - (647) 608.3131 •
PEORIA - 5415
N.
University
St..
Peoria, IL 61614 -
(309)
693.5463
BUREAU
OF
~ANO·
PEORIA. 7620
N.
University
St .•
Peoria, Il61614 - (309) 693.5462 •
CHI\MPAICN -
~12S
South Fil5t Street.
Ch"mpalgn. II. 61820 - (217)
278.5800
SPRINC;FI~LO
- 4500
S. Sixth
Street Rd., Springfield,
IL
62706 - (217) 786.6892 •
COLLINSVl~~E
-
2009
Mall
Slreet, Collinsville, Il62234 - (618) 346.5120
Mo\l(lON -
2309 W. Main St., Suite
116,
Marion, IL 6.2959
-16181 993-7200
07/30/2009 10:40
2175243291
IEPA PERMIT
PAGE 04/06
3)
Cost estimate on
l~hate
monitoring needs to be updated to reflect the current numbers
of monitoring points and sampling frequency approved by Modification No. 5
~
Permit
No. 2000-1 55.LFM.
4)
As of review date of
7/26/06,
the following outstanding pennit special conditions have
not been met.:
.
a: Condition 1.11 requires all stakes and monument marking property bOlUldaries and
pennit
areas be inspected annually and surveyed no less than once per 5 years by a
professional land
surveyor. No 5- year monument survey submitted with the
application .
. b. Condition vn.6 requires quarterly and annual leachate monitoring in accordance with
the schedule in
vm.17. No leachate data submitted since
4th
qtr of 2001.
c. Condition VII.7 requires CQA report on the construction of the leachate extraction
system
(E-W latera] trench and 2 vertical extraction wells L117 and L118 and other
related leachate management and collection appurtenances, force
main and storage
tank) in accordance with condition
1.2 and 1.9 to be submitted to the IEP A no later
than
Feb. 26, 2002. (per PCB 01-48). No CQA report has been filed.
d. Condition VII.9 requ4'es significant modification application for the evaluation 9f the
adequacy
of the approved leachate extraction system (N-S lateral trench and 2 vertical
extraction wells) to be submitted no later than
A~st
1,2002. No application has
been filed.
e, Condition Vm.22 requires the pennittee to submit well construction reports for the
Remedial Action Wells T2 and T4 no later than April 15, 2002. No report could be
found in Agency
files. These must be submitted.
f. Condition VIII.23 (a-t) requires the permittee to test the wells T2 and T4 and submit
the results
of that testing to the Agency as an application no later than May 1, 2003.
No application has been received. These results must be submitted.
g. Condition IX.9 results from
gas
monitoring to be submitted with the annual report.
The last annual report was 2001 data submitted in May 2002.
b. Condition XI. I requires annual certification be submitted by May 1 of each year. The
last certification was 2001 data submitted in May 2002.
1. Condition XI.2 requires annual report be submitted by May 1 of each year. The last
annual report was 2001 data submitted in May 2002.
Electronic Filing - Received, Clerk's Office, August 5, 2009
07/30/2009 10:40
2175243291
IEPA PERMIT
PAGE 05/06
DRAft
5.
The November 22, 2005 addendum states an assessment will be made following
collection
and analyses of data for four (4) consecutive quarters, specifically following
the 2nd
Quarter 2006 event. At such time, an annual report will be prepared as required
by Conditions vm.19, VIlI.24, and IX.9 of Penn it No. 2000-15S-LFM, and will be
submitted
to the nlinois EPA on or before July 15, 2006. The annual report will include a
summary of groundwater and leachate monitoring data for the four (4) consecutive
quarters; the results of the landfill gas monitoring data for corresponding twelve (12)
consecutive months;
ground~ater
potentiometric flow maps and calculated hydraulic
gradients
for the four (4) quarters; an assessment of seasonal and/or temporal variation in
groundwater quality; statistical summaries; and analysis of any trends. The Dlinois EPA is
not
in receipt of this report.
~.
35
m.
Adm.
Co~e
813.304 states:
a)
The applicant shall conduct a new groundwater impact assessment in accordance
with 35 Dt. Adm. Code 811.317 if any of the following changes
in
the facility or
its operation
will result in
an
increase in the probability of exceeding a
groundwater standard beyond the zone of attenuation.
1)
New or changed operating conditions;
2)
Change in the design and operation of the liner and leachate collection systems;
3)
Changes due to more accurate geological data;
4)
Changes due to modified groundwater conditions due to off site activity;
5)
Changes due to leachate characteristics
These
requiremen~
must be addressed with recent and representative groundwater and
leachate data. The addendum, dated November 22, 2005, states a new groundwater
impact
assessment will be performed in accordance with 35
nt.
Adm. Code 811.317
following the collection and analyses of groundwatc;- and leachate monitoring data for
four (4) consecutive quarters. A report will be prepared documenting the analysis and
findings of the new groundwater impact assessment and will be submitted .on or before
July 15, 2006. The TIlinois EPA has not received this report. This data should be
submitted as an
add~dum
to Application
Log
No. 2005-157.
7.
The proposed work plan provided
in
the May 26, 2005 addendum did not provide an
adequate assessment of
grOlUldwater
and leachate conditions at the facility. At a
minimum, the work plan should include the following:
•
One (1) year of List Gl groundwater monitoring encompassing four (4)
consecutive quarters
Two (2) quarters (semi-annual) of List G2 parameters
Electronic Filing - Received, Clerk's Office, August 5, 2009
07/30/2009 10:40
2175243291
IEPA PERMIT
PAGE 06/06
(b)
Groundwater treatment costs for the remediation plan were not provided in the
revised cost estimates. Groundwater treatment operation and maintenance costs
were not provided.
(c)
Condition
VIII.25 states the deep well system as part of the Remediation Plan as
referenced in Condition VIll.23 must be maintained for the 100 year
post~closure
care period as proposed on pages 15-16 of Attachment 15 (Closure Plan, Post-
Closure Care Plan and Cost Estimates) of the May 8,2000 Application
Log
No.
2000-155. Cost estimates for post-closure care should include the requirements of
this Condition..
.
Within
35 days after the date of mailing of the minois EPA's final decision, the applicant may
petition for
a hearing before the lllinois Pollution Control Board to. contest the decision of the
Illinois
EPA, however, the 35.day period for petitioning for a hearing may be extended for a
period
of time not
to
exceed 90 days by written notice provided
to
the Board from the applicant
and the Illinois
EPA within the 35-day initial appeal period.
Should you wish
to reapply or have any questions regarding this application, please contact
Cluistine Roque or Joshua
Rilying of
my
staff at 217/524-3300.
Sincerely,
~,
O~~
Steve F. Nightingale, P.E.
Manager, Permit Section
Bureau of Land
SFN :CMR:monisA \2005-157 draft denial 3:
10/22107
CC:
Devin A. Moose, P.E.- Shaw Environmental, Inc.
Mr. Robert J. Pruim - Community Landfill Company
f.5
Electronic Filing - Received, Clerk's Office, August 5, 2009
I, MARK RETZLAFF, being first duly sworn upon oath, depose
and state:
1.
I am employed by the ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, ("Illinois EPA") as an Environmental Protection
.
.
Specialist
in
the Field Operations Section, Bureau of Land. My
office is located at 9511 W. Harrison Street, Des Plaines,
Illinois. Under the direction of my supervisors, I am
responsible for the investigati6n of potential land pollution
violations.
2.
One of my duties in the Field Operations Section is to
conduct inspections of sanitary landfills to determine
compliance with the
Illinois
Environmental Protection Act
("Act"), Illin01s EPA and Illinois Pollution Control Board
regulations, and the ter.ms and conditions of Illinois EPA-issued
landfill permits.
3. Community Landfill Company
is
the permitted operator of
the Morris Community Landfill, located in Morris, Grundy County,
Illinois("LandfillH). The Landfill is divided into two parts,
wi th "Parcel A", on the east side of Ashley Road, and "Parcel B"
on the west side of Ashley Road. The permitted owner of the
Landfill is the City of Morris.
l
EXHIBIT
I.
II
~141ft/tl-A.rrJ
b
(;ofY)P
i
i
dv
4.
Since 2002, I have been responsible for inspecting the
Morris Community Landfill. I have personally inspected the
Landfill on at least 15 occasions.
5.
On September 11, 2007, I testified at hearing in this
matter. Included in my testimony were my observations of
continued dumping of general refuse and sludge from the City of
Morris water treatment plant on June 26, 2007, and additional
general refuse observed on August 29, 2007.
6.
On June 24, 2008, I inspected the Landfill and
observed freshly dumped waste on parcel A. The waste consisted
of asphalt shingles, street sweepings, and assorted debris.
7.
On April 29,
2009,
I again inspected the Landfill.
Upon arriving I met with James Pelnarsh
t
Site Manager for
Community Landfill Company.
8.
On April 29, 2009, Mr. Pelnarsh told me that the
Landfill was accepting contaminated soils from an excavation
project at Columbia College in Chicago. I reviewed the records
for this dumping and noted that between February 17, 2009 and
April 23,
2009,
the Landfill had accepted at least 194
truckloads of contaminated soil from this project.
9. Mr. Pelnarsh showed me a copy of a manifest for loads
from the Columbia College excavation project which had been
2
Electronic Filing - Received, Clerk's Office, August 5, 2009
disposed at the Landfill on April 23, 2009. I was able to
determine from the manifest that the material being dumped was
"special waste" as that term is defined in the Board's waste
disposal regulations.
10. On April 29, 2009, Mr. Pelnarsh told me that the City
of Morris was continuing to dump waste at the Landfill. He
described the City waste as consisting of wastewater treatment
sludge, ditch cleanout waste, and street sweepings.
11. On April 29, 2009, I inspected Parcel A of the
Landfill, and observed that the elevation was substantially
higher than I had observed on June 24, 2008.
I
also observed an
active dumping area wi,th approximate dimensions 150
I
by 100
I •
In this area I observed a variety of waste, including wastewater
treatment sludge, wood demolition debris, shingles, carpeting,
tires, plastic, and other waste which appeared to be partially
burned and was consistent with fire-related debris.
12. On April 29, 2009, I observed a City of Morris truck
(No. 329) corne to Parcel B and dump a load of material.
13.
I
have personal and direct knowledge of the facts
stated herein, and if called as a witness at a
hear~ng
in this
matter, could competently testify thereto.
FURTHER AFFIANT SAYETH NOT.
'3
Electronic Filing - Received, Clerk's Office, August 5, 2009
Subscribed and sworn before me
this
~
day of June, 2009
4
Electronic Filing - Received, Clerk's Office, August 5, 2009
West
law.
745 ILCS 10/9-107
C
Fonnerly cited as IL ST CH 85
~
9-107
Effective:
June
23, 2008
West's Smith-Hurd Illinois Compiled Statutes Annotated Currentness
Chapter 745. Civil Immunities
Page 2 of 14
Page I
"I§) Act 10. Local Governmental and Governmental Employees Tort Immunity Act (Refs & Annos)
"I§) Article IX. Payment of Claims and Judgment (Refs
&
Annos)
.. 10/9-107. Policy; tax levy
§
9-107. Policy; tax levy.
(a) The General Assembly finds that the purpose
of this Section is to provide an extraordinary tax for funding
expenses relating to (i) tort liability, (ii) liability relating to actions brought under the federal Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 or the Environmental Protection Act, but
only until December
31,2010, (iii) insurance, and (iv) risk management programs. Thus, the tax has been ex-
cluded from various limitations otherwise applicable to tax levies. Notwithstanding the extraordinary nature of
the tax authorized by this Section, however, it has become apparent that some units
of local government are us-
ing the tax revenue to fund expenses more properly paid from general operating funds. These uses
of the reven-
ue are inconsistent with the limited purpose
of the tax authorization.
Therefore, the General Assembly declares,
as a matter of policy, that (i) the use of the tax revenue authorized by
this Section for purposes not expressly authorized under this Act
is improper and
(ii)
the provisions of this Sec-
tion
shal1 be strictly construed consistent with this declaration and the Act's express purposes.
(b) A local public entity may
annual1y levy or have levied on its behalf taxes upon al1 taxable property within its
territory at a rate that will produce a sum that
wil1 be sufficient to: (i) pay the cost of insurance, individual or
joint self-insurance (including reserves thereon), including
al1 operating and administrative costs and expenses
directly associated therewith, claims services and risk management directly attributable to loss prevention and
loss reduction, legal services directly attributable to the insurance, self-insurance, or joint self-insurance pro-
gram, and educational, inspectional, and supervisory services directly relating to loss prevention and loss reduc-
tion, participation
in a reciprocal insurer as provided in Sections 72, 76, and 81 of the Illinois Insurance Code, or
participation
in a reciprocal insurer, al1 as provided in settlements or judgments under Section 9-102, including
all costs and reserves directly attributable to being a member
of an insurance pool, under Section 9-103; (ii) pay
the costs
of and principal and interest on bonds issued under Section 9-105; (iii) pay judgments and settlements
under Section 9-104
of this Act; (iv) discharge obligations under Section 34-18.1 of the School Code; (v) pay
judgments and settlements under the federal Comprehensive Environmental Response, Compensation, and Liab-
.
EXHIBIT
,
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
l!
~f1I,flA-)N
~TJ
I
3
http://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split&... 8/5/2009
Page 3 of
14
745 ILCS 10/9-107
Page 2
ility Act
of 1980 and the Environmental Protection Act, but only until December 31, 2010; (vi) pay the costs au-
thorized by the Metro-East Sanitary District Act
of 1974 as provided in subsection (a) of Section 5-1 of that Act
(70 ILCS 2905/5-1); and (vii) pay the cost of risk management programs. Provided it complies with any other
applicable statutory requirements, the local public entity may self-insure and establish reserves for expected
losses for any property damage or for any liability or loss for which the local public entity
is authorized to levy
or
have levied on its behalf taxes for the purchase of insurance or the payment of judgments or settlements under
this Section. The decision
of the board to establish a reserve shall be based on reasonable actuarial or insurance
underwriting evidence and subject to the limits and reporting provisions
in Section 9-103.
If a school district was a member of a joint-self-health-insurance cooperative that had more liability in outstand-
ing claims than revenue to pay those claims, the school board
of that district may by resolution make a one-time
transfer from any fund
in whieh tort immunity moneys are maintained to the fund or funds from which payments
to a joint-self-health-insurance cooperative can be or have been made
of an amount not to exceed the amount of
the liability claim that the school district owes to the joint-self-health-insurance cooperative or that the school
district paid within the 2 years immediately preceding the effective date
of this amendatory Act of the 92nd
General Assembly.
Funds raised pursuant to this
Section shall only be used for the purposes specified in this Act, including protec-
tion against and reduction
of any liability or loss described hereinabove and under Federal or State common or
statutory law, the Workers' Compensation Act, the Workers'
Occupational Diseases Act and the Unemployment
Insurance Act. Funds raised pursuant to this
Section may be invested in any manner in which other funds of loc-
al public entities may be invested under Section 2 of the Public Funds Investment Act. Interest on such funds
shall be used only for purposes for which the funds can be used or,
if surplus, must be used for abatement of
property taxes levied by the local taxing entity.
A local public entity may enter into intergovernmental contracts with a term
of not to exceed 12 years for the
provision
of joint self-insurance which contracts may include an obligation to pay a proportional share of a gen-
eral obligation or revenue bond or other debt instrument issued by a local public entity which
is a party to the in-
tergovernmental contract and
is authorized by the terms of the contract to issue the bond or other debt instru-
ment. Funds due under such contracts shall not be considered debt under any constitutional or statutory limita-
tion and the local public entity may levy or have levied on its behalf taxes to pay for its proportional share under
the contract. Funds raised pursuant to intergovernmental contracts for the provision
of joint self-insurance may
only be used for the payment
of any cost, liability or loss against which a local public entity may protect itself or
self-insure pursuant to
Section 9- 103 or for the payment of which such entity may levy a tax pursuant to this
Section, including tort judgments or settlements, costs associated with the issuance, retirement or refinancing of
the bonds or other debt instruments, the repayment
of the principal or interest of the bonds or other debt instru-
ments, the costs
of the administration of the joint self-insurance fund, consultant, and risk care management pro-
grams or the costs
of insurance. Any surplus returned to the local public entity under the terms of the intergov-
ernmental contract shall be used only for purposes set forth
in subsection (a) of Section 9- 103 and Section 9-107
or for abatement
of property taxes levied by the local taxing entity.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
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Electronic Filing - Received, Clerk's Office, August 5, 2009
Page 4 of
14
745 ILCS 10/9-107
Page 3
Any tax levied under this Section shall be levied and collected in like manner with the general taxes of the entity
and shall be exclusive
of and in addition to the amount of tax that entity is now or may hereafter be authorized to
levy for general purposes under any statute which may limit the amount
of tax which that entity may levy for
general purposes. The county clerk
of the county in which any part of the territory of the local taxing entity is
located, in reducing tax levies under the provisions of any Act concerning the levy and extension of taxes, shall
not consider any tax provided for by this Section as a part of the general tax levy for the purposes of the entity
nor include such tax within any limitation
of the percent of the assessed valuation upon which taxes are required
to be extended for such entity.
With respect to taxes levied under this Section, either before, on, or after the effective date of this amendatory
Act
of 1994:
(1) Those taxes are excepted from and shall not be included within the rate limitation imposed by law on taxes
levied for general corporate purposes by the local public entity authorized to levy a tax under this Section.
(2) Those taxes that a local public entity has levied in reliance on this Section and that are excepted under
paragraph (1) from the rate limitation imposed by law on taxes levied for general corporate purposes by the
local public . entity are not invalid because
of any provision of the law authorizing the local public entity's tax
levy for general corporate purposes that may be construed or may have been construed to restrict or limit those
taxes levied, and those taxes are hereby validated. This validation of taxes levied applies to all cases pending
on or after the effective date
of this amendatory Act of 1994.
(3) Paragraphs
(1) and (2) do not apply to a hospital organized under Article 170 or 175 of the Township
Code, under the Town Hospital Act, or under the Township Non-Sectarian Hospital Act and do not give any
authority to levy taxes on behalf
of such a hospital in excess of the rate limitation imposed by law on taxes
levied for general corporate purposes. A hospital organized under Article 170 or 175 of the Township Code,
under the Town Hospital Act, or under the Township Non-Sectarian Hospital Act is not prohibited from levy-
ing taxes in support of tort liability bonds if the taxes do not cause the hospital's aggregate tax rate from ex-
ceeding the rate limitation imposed by law on taxes levied for general corporate purposes.
Revenues derived from such tax shall be paid to the treasurer of the local taxing entity as collected and used for
the purposes
of this Section and of Section 9-102, 9-103, 9-104 or 9-105, as the case may be.
If
payments on ac-
count of such taxes are insufficient during any year to meet such purposes, the entity may issue tax anticipation
warrants against the current tax levy in the manner provided by statute.
CREDIT(S)
Laws 1965,
p. 2983, § 9-107, eff. Aug. 13, 1965. Amended by P.A. 80-1341, § 1, eff. Aug. 11, 1978; P.A.
81-164, § 1, eff. Jan. 1, 1980; P.A. 82-783, Art. IV, § 20, eff. July 13, 1982; P.A. 83-718, § 1, eff. Sept. 23,
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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.
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PCB No. 03-191
(Enforcement-Land)
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused to be served this 5
th
day
of August, 2009, the foregoing Response to the City of Morris's Motion for Reconsideration,
and Notice
of Filing, upon the persons listed below by first class mail.
City
of Morris
c/o Mr. Charles Helsten
Hinshaw
&
Culbertson
100 Park A venue
Rockford, Illinois
61101
Community Landfill Co.
c/o Mr. Mark LaRose
LaRose
&
Bosco
200 N. La Salle Street, Suite 2810
Chicago, Illinois 60601
Mr. Bradley P. Halloran
Illinois
Pollution Control Board
100 W. Randolph Street
Chicago, Illinois 60601
CHRISTOPHER
GRANT
Mr.
Scott Belt
Belt, Bates
&
Associates
105 E. Main Street
Suite 206
Morris, Illinois 60450
Community Landfill Co.
c/o Ms. Clarissa Cutler
Attorney at Law
155 North Michigan,
Suite 375
Chicago, Illinois
60601
