BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
COMMUNITY LANDFILL COMPANY, INC.,
an
illinois corporation, and
the CITY
OF MORRIS, an illinois
municipal corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
PCB NO. 03-191
(Enforcement - Land)
NOTICE
OF FILING
TO:
See Attached Service List
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the illinois
Pollution Control Board by electronic filing the following COMPLAINANT'S RESPONSE TO
COMMUNITY LANDFILL COMPANY, INC. 'S MOTION FOR RECONSIDERATION OF THE
ILLINOIS POLLUTION CONTROL BOARD'S ORDER DATED JUNE 18,2009, a copy of which is
attached and hereby served upon you.
DATE: August 26,
2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of illinois
nifer . Van Wie
hristopher Grant
Assistant Attorneys General
Environmental Bureau
69 W. Washington
Street, Suite 1800
Chicago, illinois 60602
(312) 814-0609
(312) 814-5388
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, August 26, 2009
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
City of Morris
c/o Mr. Richard Porter
Hinshaw
&
Culbertson
100 Park Avenue
Rockford, Illinois
61101
Community Landfill Co.
c/o Mr. Mark LaRose
LaRose
&
Bosco
200 N. La Salle Street, Suite 2810
Chicago, Illinois 60601
SERVICE LIST
Mr. Scott Belt
Scott Belt
&
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
Electronic Filing - Received, Clerk's Office, August 26, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
)
Complainant,
)
)
v.
)
)
COMMUNITY LANDFILL COMPANY, INC.,
)
an Illinois corporation, and
)
the
CITY OF MORRIS, an Illinois
)
municipal corporation,
)
)
Respondents.
)
PCB
NO. 03-191
(Enforcement - Land)
COMPLAINANT'S RESPONSE TO COMMUNITY LANDFILL COMPANY, INC.'S
MOTION FOR RECONSIDERATION OF THE ILLINOIS POLLUTION CONTROL
BOARD'S ORDER DATED JUNE 18,2009
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by Lisa Madigan, Attorney
General for the
State of Illinois, pursuant to Section 101.520 of the Illinois Pollution Control
Board
("Board") General Rules Regulations, 35 Ill. Adm. Code 101.520, hereby responds to
Respondent, Community Landfill Company,
Inc.'s ("CLC"), Motion for Reconsideration of the
Board's Order dated June 18,2009 and Memorandum in support thereof. In support of its
response, Complainant states as follows:
I.
INTRODUCTION
This response is filed pursuant to Section 101.520(b) ofthe Board General Rules
Regulations, 35 Ill. Adm. Code
101.520(b), which allows for any response to a motion for
reconsideration to
be filed within 14 days after the filing of the motion. Respondent CLC filed
its Motion for Reconsideration with the Board on July
27,2009. Complainant timely filed a
Motion to Extend Time to Respond to
CLC's Motion for Reconsideration on August 5, 2009, a
week before its response was due.
On August 25,2009, the Board granted Complainant's
Motion to Extend.
Page 1 of 18
People v.
eLe
and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
On February 16, 2006, the Board granted summary judgment in favor of the
Complainant. The only issue presented at the hearing held from September
10 -12, 2007 was
remedy. Therefore, the Board should not be reconsidering liability, only the relief granted in the
Board's June
18,2009.
Complainant requests the Board to uphold its June 18,2009 Order in its entirety and
order CLC to come into compliance with the Illinois Environmental Protection Act
("Act") and
Board regulations forthwith.
II.
STANDARD FOR RECONSIDERATION
In
ruling on a motion for reconsideration, the Board will consider factors including new
evidence
or a change in the law, to conclude that the Board's decision was in error. 35
Ill.
Adm.
Code
101.902; see also Grand Pier Center, LLC, et al., v. River East LLC,
et a!.,
PCB 05-157,
2006 WL 707676 at *1 (March 2,2006).
In
Citizen's Against Regional Landfill v. County
Board
of Whiteside County, PCB 92-156, slip op. at 2 (Mar. 11, 1993), the Board observed that
"the intended purpose of a motion for reconsideration is to bring to the [Board's] attention newly
discovered evidence which was not available at the time
of the hearing, changes in the law or
errors in the [Board's] previous application
of existing law." Korogluyan v. Chicago Title
&
Trust Co., 213
Ill.
App. 3d 622, 627,572 N.E.2d 1154, 1158 (15t Dist. 1991).
Respondent CLC brought its Motion for Reconsideration
ofthe June 18, 2009 Order to
"bring the Board's attention to errors in the Board's application of existing law." (CLC Motion
for Reconsideration at 2). CLC did not claim any newly discovered evidence not available at the
time
of hearing or changes in the law as a basis for its Motion for Reconsideration.
Page 2 of 18
People v.
eLe
and City a/Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June 18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
III.
CLC'S FACTUAL SUMMATION MISREPRESENTS THE PROCEDURAL
HISTORY OF THIS
MATTER
As CLC notes in its Motion for Reconsideration,
"the underlying facts ofthis matter have
been the subject
of extensive litigation". (CLC Motion for Reconsideration at 2). Complainant
agrees. The Board had ample opportunity to take notice
of the detailed factual history of this
case via the Complainant's Complaint, Respondents Answers to the Complaint, the parties'
Motions for
Summary Judgment, two (2) days of hearing testimony, and the parties' post-hearing
briefs. And it has done so, as evidenced in its February 16,
2006 Interim Order and re-iterated in
its June
18,2009 Order.
Additionally, most of these "facts" were argued before the Board and Appellate Court in
CLC's permit appeal
(PCB 01-170), and were incorporated by reference pursuant to 35 Ill. Adm.
Code
101.306. At the 2007 hearing in this matter, CLC only chose to call one witness in its case
- Edward Pruim, who merely testified to the poor financial condition ofCLC. CLC's self-
serving recitation
of prior testimony, not subject to cross-examination, as "facts" in its Motion
for Reconsideration should be seen for what it is and disregarded
by the Board in its entirety.
IV.
ON FEBRUARY 16,2006, THE BOARD
CORRECTLY RULED
IN
FAVOR OF
COMPLAINANT THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED
REGARDING THE LANDFILL'S FINANCIAL ASSURANCE AND
CORRECTLY APPLIED
OFFENSIVE COLLATERAL ESTOPPEL
As a preliminary matter, Complainant objects to CLC's presentation of a Motion for
Reconsideration
of the February 16, 2006 Board Order. CLC filed a Motion for Reconsideration
of the February 16, 2006 Order on March 31, 2006. That Motion was later denied by the Board
on June
1, 2006. There is no Board regulation that allows for the additional reconsideration of a
Board
Order. Liability has already been determined and CLC cannot get another proverbial 'bite
I
at the apple'.
Page 3 of18
People v. CLC and City a/Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June 18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
Alternatively, if the Board does decide to consider CLC's motion as to the February 16,
2006 Board Order, the Complainant responds as follows:
A.
The Board Correctly Ruled in Complainant's Favor that the Respondents
Violated the Act
and Board Regulations Related to the Financial Assurance
of the Landfill
Respondent CLC relies on the Illinois EPA's claims on the Frontier bonds, the hearing
testimony
of Blake Harris, and a letter from Illinois EPA employee Beverly Anderson for its
assertion that genuine facts do exist to preclude the prior finding
of summary judgment. (CLC
Motion for Reconsideration at 16). However, as previously stated, summary judgment was
granted in Complainant's favor in
2006. The issue ofliability is therefore closed and not ripe for
further debate.
1.
State Claim on the Frontier Bonds and Blake Harris's Testimony at
Hearing
At hearing, Mr. Harris made the distinction between the compliance
of the bonds as
financial assurance and the validity
of the bonds as a monetary instrument. (9/11107 Trial
Transcript, pp. 144-147). Any confusion among Illinois EPA staff as to the Frontier bonds being
compliant financial assurance was resolved
by the Appellate Court in 2002. Respondent
steadfastly refuses to acknowledge that the Appellate Court found the Frontier bonds to be non-
compliant financial assurance in
2002.
2.
January 27,2004 Letter by Agency Employee Beverly Anderson/Johnson
to Frontier
Respondent CLC refers to a letter sent from Beverly Anderson/Johnson (CLC uses
different last names interchangeably) to Frontier. (CLC Motion for Reconsideration at 16-17).
CLC attached this letter to its response
to Complainant's Motion for Summary Judgment. (CLC
Motion for Reconsideration at 16-17). Therefore, the Board had this evidence for consideration
Page 4 of 18
People v.
eLe
and
City
of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
when it granted Summary Judgment to Complainant. This is not new evidence. And even if it
were,
CLC's Motion for Reconsideration of the February 16,2006 Board Order was denied over
three (3) years ago.
Additionally, CLC did not call Ms. Anderson/Johnson to testify at trial.
rfCLC thought
Ms. Anderson/Johnson's letter was
so definitive to the issue of the compliance of the Frontier
bonds, then why did they not call on Ms. Anderson/Johnson at hearing? That would've allowed
the Complainant to cross-examine her on the issue and gotten the issue before the Board to
consider in its evaluation
ofthe 33(c) and 42(h) factors. But rather than do that, CLC chose to
unilaterally provide this
"new evidence" in its Motion for Reconsideration despite it being
available long before the hearing date. The Complainant cannot cross examine a letter and
requests that the Board disregard this
"new evidence" outright.
B.
The Board Properly Applied Offensive Collateral Estoppel Regarding the
Frontier Bonds
as Compliant Financial Assurance
Respondent again turns to the testimony of Blake Harris and the January 27,2004 Letter
of Ms. Beverly Anderson/Johnson to justify its position that offensive collateral estoppel was
incorrectly applied to the issue
of the Frontier bonds. (CLC Motion for Reconsideration at 17).
Complainant reiterates its previous arguments that this issue was definitely decided
by the
Appellate Court in
2002, Mr. Harris's testimony was taken out of context, and Ms. Anderson
was not presented at hearing where Complainant could cross-examine the veracity
of her
statements.
Complainant request the Board uphold its February
16,2006 Order finding summary
judgment in favor
of Complainant, which correctly applied offensive collateral estoppel to the
issue
of the compliance of the Frontier bonds.
Page 5 of 18
People v.
eLe
and
City
of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
V.
THE BOARD HAS THE AUTHORITY TO ORDER RESPONDENT CLC TO
CEASE AND DESIST FROM VIOLATIONS OF THE ILLINOIS
ENVIRONMENT AL PROTECTION ACT AND BOARD REGULATIONS AND
TO TAKE SUCH ACTIONS NECESSARY TO STOP THE VIOLATION
Without any support, Respondent CLC claims that Section 33 does not authorize the
"affinnative" relief sought by the Complainant and ordered by the Board. (CLC Motion for
Reconsideration at 8). CLC claims that the Board did not have the authority to order the
Respondents to post financial assurance, submit revised cost estimates, and cease accepting
wastes at the Landfill.
Id.
However, the Board clearly had the authority to order that the
violations be corrected. Moreover, the "affinnative" relief requested by Complainant is
essentially a request for an order to cease and desist from violations
of the Act and Board
regulations, and must be upheld.
Section 33(a) and (b) of the Act, 415 ILCS 5/33(a) and (b) (2008), provide broad
authority to issue orders -
"the Board shall issue and enter such final order, as it shall deem
appropriate under the
circumstances." 415 ILCS 5/33(a) (2008). Such orders may include a
direction to cease and desist from violations
of the Act and regulations. 415 ILCS 5/33(b)
(2008). Clearly, the Board has the authority to order whatever actions are necessary to stop the
Respondents from continuing to violate the Act and Board regulations. Otherwise, CLC could
continue to violate the Act and Board regulations, which is contrary to the stated purpose
of the
Act found at Section
2. 415 ILCS
512 (2008).
The Supreme Court of Illinois in City of Waukegan v. Pollution Control Board, 57 Il1.2d
170, 311 N.E.2d 146 (1974), held that the legislature has conferred upon the Illinois Pollution
Control Board those powers that are reasonably
necessary: to accomplish the legislative purpose
of the administrative agency; specifically the imposition of monetary 'penalties' for violation of
the Environmental Protection Act, and necessarily the power to order compliance with the Act.
Page 6 of 18
People
v.
CLC and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
Kaeding v. Pollution Control Bd. 22 Ill.App.3d 36,38,316 N.E.2d 788, 790 (2
nd
Dist. 1974).
The Board has the inherent authority to
do all that is reasonably necessary to execute its statutory
power under the Act. People
v. Archer Daniels Midland, 140 Ill. App. 3d 823, 489 N.E. 2d 882
(3d Dist. 1986).
Here, the Board ordered CLC to post financial assurance, provide updated cost estimates,
upgrade financial assurance for closure and post closure, and cease from accepting additional
waste. (June
18,2009 Board Order at 42-44). Respondents were required to take these actions
under the Act, Board regulations, and Respondents' Significant Modification Permits regardless
of the Board's June 18,2009 Order. The Board has executed its authority in similar landfill
cases. In People
v. John Prior and Industrial Salvage, Inc., PCB 93-248, the Board ordered the
Respondents to post financial assurance, complete closure
of two landfills, remove and relocate
improperly disposed waste, and take extensive action to correct conditions which posed a threat
to the environment. PCB93-248 (July
7, 1995); See also People v. Wayne Berger
et ai.,
PCB
94-373 (May
6, 1999) (order to perform closure oflandfill).
The Board's inherent authority
to order that violations be corrected is an important part of
the overall enforcement mechanism in the Act. Board orders are directly enforceable in Circuit
Court pursuant to Section 42(a)
of the Act, 415 ILCS 5/42(a) (2008). The Circuit Court has no
discretion in enforcing Board
Orders, and challenges to the appropriateness of the Board's
ordered relief must be taken directly to the Appellate Court. The Board does not need the power
of injunctive relief, as its orders are expressly enforceable by injunction pursuant to Section
33(d)
of the Act, 415 ILCS 5/33(d) (2008).
Page 7 of 18
People v. CLC and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June 18,2009 Board Order
A.
Requirement to Post Financial Assurance
In its June 18, 2009 Order, the Board found Respondents in violation of Section
811.711(f)
of the Board regulations, 35 Ill. Adm. Code 811.700(f). (June 18,2009 Board Order
at 42). Section 811.700(f) requires the Respondents to comply with the financial assurance .
requirements
of Part 811. Section 811.701(a) requires owners or operators to maintain financial
assurance equal
or greater than the current cost estimate calculated pursuant to Section 811.704
at all times. 35 Ill. Adm. Code 811.701(a). In its June 18,2009 Order, the Board required CLC,
jointly and severally with the City
of Morris, to post financial assurance in the amount of
$17,427,366.00. (June 18,2009 Board Order at 42-43). This amount corresponds to the most
recent Illinois EPA-approved cost estimate calculated pursuant to Section
811.704.
B.
Requirement to Submit Revised Cost Estimate
Section 811. 705( d) requires the owner or operator of a MSWLF unit to adjust the cost
estimates
of closure, postclosure, and corrective action for inflation on an annual basis during
specified time periods. 35 Ill. Adm. Code 811.
705( d). Respondents have not submitted updated
cost estimates for the Landfill since 1999, yet are required to do so on a yearly basis pursuant to
Section
811.700 and 811.705. (35 Ill. Adm. Code 811.701 and 811.705(d)).
Section 811.701 (b) requires the owner or operator to increase the total amount of
financial assurance so as to equal the current cost estimate within 90 days after specified
occurrences. 35 Ill. Adm. Code 811.701(b). Additionally, 811.701(c) requires the owner
or
operator of a MSWLF unit to annually make adjustments for inflation if required pursuant to
Section 811.704(k)(2)
or 811.705(d). 35 Ill. Adm. Code 811.701(c).
C.
Requirement to Cease Accepting Wastes
In its June 18,2009 Order, the Board found Respondents in violation of Section
Page 8 of 18
People v. CLC and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
21(d)(2) of the Act, 415 ILCS 5/21(d)(2) (2006) and the above-referenced regulations. (June 18,
2009 Board Order at 42). Section 21(d)(2) prohibits Respondents from conducting any waste-
storage, waste-treatment, or waste-disposal operation in violation of any regulations or standards
adopted
by the Board under the Act.
Id.
As detailed above, Respondent CLC has not complied
with the Board regulations pertaining to financial assurance, therefore violating Section 21(d)(2)
of the Act. The Board appropriately ordered CLC to stop immediately stop accepting any
additional waste at the
Site and from further violations of the Act and Board's regulations.
D.
The Board's Authority to Enter a Cease and Desist Order under Section
33(b)
of the Act is not Injunctive Relief
The Board's requirements to post financial assurance, submit revised cost estimates,
upgrade financial assurance for closure and post closure, and cease accepting wastes at the
Landfill are not injunctive relief but an order to come into compliance with
Part 811 of the Board
regulations and Section 21(d)(2)
of the Act. (June 18,2009 Board Order at 42-43). This
authority is clearly within the Board's power under Section 33(b)
ofthe Act to order
Respondents to cease and desist
from violations of the Act and regulations adopted under the
Act, and achieve compliance with the Act and Board regulations. The Board is prohibiting
Respondent CLC from continuing a particular course
of conduct, that being the violations of the
finaricial assurance requirements of Part 811 and Section 21(d)(2) of the Act.
Complainant requests the Board uphold its authority to order Respondents to cease and
desist from violating the Act and Board regulations and to bring its site back into compliance.
VI.
THE BOARD-ORDERED DEADLINE FOR COMPLIANCE WITH THE
FINANCIAL ASSURANCE REGULATIONS IS APPROPRIATE AND SHOULD
STAND
Respondent CLC argues in the alternative that revised cost estimates should be allowed
Page 9 of 18
People v. CLC and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
to be submitted prior to the posting of financial assurance. (CLC Motion for Reconsideration at
8). Complainant heartily disagrees. This request should be seen for what it truly is - another
delay tactic in posting financial assurance for the Landfill. Both Respondents have had ample
opportunity to submit revised cost estimates to the Illinois EPA. The most recent revised cost
estimate was submitted to the Illinois EPA in July 2007 and rejected by the Illinois EPA in
October 2007. Since then, neither Respondent has submitted a revised cost estimate to the
Illinois EPA for review. Respondents have failed to comply with the Board regulations requiring
submission
of an annual revised cost estimate (Section 811.705(d)) and increase in the total
amount
of financial assurance so as to equal the current cost estimate within 90 days (Section
811.701 (b)). Respondents should not gain the benefit
of additional time for their non-
compliance. Complainant requests the Board uphold its deadlines for SUbmitting financial
assurance, revised cost estimate and for upgrading financial assurance, accordingly.
As Respondent CLC joins in those portions
of Respondent City of Morris's brief
requesting reconsideration of the timing of submitting financial assurance and cost estimate, the
Complainant incorporates
by reference its response to the City's argument herein.
VI.
THE BOARD CORRECTLY APPLIED THE LAW TO SECTIONS 33(c) AND
42(h) IN RENDERING A CIVIL PENALTY
AGAINST CLC
A.
Section 33(c)(iv) - the technical practicability and economic reasonableness
of reducing or eliminating the emissions, discharges or deposits resulting
from such pollution source
Respondent CLC argues that the Board misapplied the law under Section 33(c)(iv) of the
Act
by dismissing certain facts and not applying the technical practicality and economic
reasonableness standard to CLC specifically. (CLC Motion for Reconsideration at 9-10). CLC
has provided no legal authority for this position. CLC additionally requests the Board determine
that a civil penalty is not justified or alternatively, significantly reduce the penalty. (CLC
Page 10 of 18
People v. CLC and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
Motion for Reconsideration at 11). Complainant argues that even taking into account CLC's
factual argument and applying the standard to CLC specifically, this factor weighs in favor of a
higher civil penalty and the current penalty should be upheld.
1.
The Financial Assurance Requirements are Technically Feasible and
Economically Reasonable
Since
2002, when the Appellate Court definitively determined the Frontier bonds to be
noncompliant financial assurance, CLC has not replaced it.
By the time the CLC investigated
replacing the deficient Frontier Bonds, closure
of Parcel B of the Landfill was already several
years overdue. (Complainant Post-Hearing
Brief at 12).
It
is unsurprising that prospective
financial assurance providers would require CLC to post a substantial amount of collateral.
!d.
The Landfill had to be properly closed at some point and CLC simply failed to retain sufficient
capital from their Landfill operations to assure the Landfill's ultimate closure.
Id.
Their failure
to properly conserve resources for the inevitable closure
of the Landfill should not be considered
a defense, and the Board should find that compliance was feasible.
!d.
Meeting the financial assurance requirements was also economically reasonable for CLC.
The regulations place all of the cost of closure and post closure care on those with a direct
financial stake in the landfill. (Complainant Post-Hearing
Brief at 12). Requiring such
assurance from owners and operators is inherently reasonable and avoids a negative incentive to
hoard income while avoiding long-term responsibility.
Id.
Illinois taxpayers should never have
to assume a risk that they must fund closure and maintenance
of a Landfill that they neither
owned nor operated.
!d.
The regulations put the Respondents on-notice that they would be
required to ensure the cost of closure, and to guarantee that future maintenance issues would be
addressed. (Complainant Post-Hearing Brief at 12-13). These are requirements to which all
Page 11 of 18
People
v.
CLC and City o/Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June 18,2009 Board Order
landfills located in Illinois subject to the 811 regulations must comply. Earnings from Landfill
operations should have been retained for this purpose. (Complainant Post-Hearing
Brief at 13).
Economic reasonableness is not determined based on whether a particular entity can
"afford" the cost of compliance. When Frontier was delisted from the approved list of sureties in
2000, a total of thirty (30) landfills in Illinois were using Frontier Insurance Company surety
bonds for financial assurance. (Complainant Post-Hearing
Brief at 10). All of these landfills
were sent notices
of violation that advised the landfills that the bonds had become noncompliant
and requested that substitute financial assurance be provided.
Ofthese thirty (30) facilities,
twenty eight (28) subsequently replaced their Frontier Bonds with compliant financial assurance.
Id.
Of the two (2) landfills that took no action, one went out of business and the other is the
Morris Community Landfill.
!d.
Twenty-eight (28) other landfills were able to provide
substitute financial assurance, thus making it both technically feasible and economically
reasonable for CLC to do so. Yet, rather than attempting to find substitute financial assurance at
this point, CLC continued to futilely fight the issue
of whether the Frontier bonds were
compliant. In any event, it is certainly economically reasonable for CLC, like all other permitted
landfills, to obtain the requisite financial assurance.
As for the landfill generating any income, CLC claims it has been unable to generate
income since the Agency refuses to grant it an operating permit. (CLC Motion for
Reconsideration at
10, 13, and 15). As attested to by Mr. Retzlaff at hearing (9/11/07 Trial
Transcript, pp. 58 - 74) and in the attached affidavit (see Affidavit of Mark Retzlaff, attached
hereto and incorporated herein as Exhibit A), CLC has continued to accept wastes at the Landfill
despite being unpermitted to do so. Complainant assumes CLC is accepting these wastes for a
fee. CLC's claim of poverty to obtain fmancial assurance while illegally accepting wastes at a
Page 12 of 18
People v.
eLe
and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June 18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
landfill in violation of the Act and Board regulations and blaming the Illinois EPA for failing to
issue it an operating permit condoning its bad behavior reeks of hypocrisy.
3.
Civil Penalty
In Chicago Magnesium Casting Company
v. Illinois Pollution Control Board, the Court
found the following:
The petitioner interprets Section
33 to mean that, if it is not technically practicable
or economically reasonable to reduce or eliminate the pollution, there can be no
violation. Such an interpretation would mean that a government would be
powerless to restrict pollution regardless of its severity, even if it endangered lives
so long as it was economically unreasonable
or technically impracticable for an
individual to continue to operate without polluting. This is a dangerous principle
and manifestly unacceptable. We agree, rather, with the Agency's position that
economic reasonableness and technical practicability are but two factors to be
considered
by the Board in determining whether or not the Act has been violated.
Chicago Magnesium Casting Company
v. Illinois Pollution Control Board, 22 Ill. App. 3d 489,
493,317 N.E.2d 689. 692 (1 st Dist. 1973). Based on the foregoing, even assuming arguendo it
was technically impracticable and economically unreasonable for CLC to comply with the
landfill permitting and financial assurance system requirments, mitigation
of this factor alone
would not nullify the civil penalty in its entirety. The Board has all
ofthe Section 33( c) and
42(h) factors to consider in crafting a civil penalty.
Respondent CLC has requested in several sections
of its brief that the Board determine a
civil penalty is not justified based on a single 33(c) or 42(h) factor. (CLC Motion for
Reconsideration at 11, 13, and 15). Complainant reiterates that the Board has all
of the Section
33(c) and 42(h) factors to consider in crafting a civil penalty in response to those requests.
Complainant argues that the Board properly applied Section 33(c)(iv) to the Respondent
CLC and should uphold its finding as an aggravating factor necessitating a civil penalty.
Page 13 of 18
People
v.
CLC and City a/Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
B.
Section 42(h)(2) - the presence or absence of due diligence on the part of the
respondent in attempting to comply with the requirements
of the Act and
regulations thereunder or to secure relief therefrom as provided by the Act
Respondent CLC claims it was diligent in seeking financial assurance. (CLC Motion for
Reconsideration at 13).
"Due Diligence" is "[t]he diligence reasonably expected from, and
ordinarily exercised by, a person who seeks to satisfy a legal requirement or discharge an
obligation." Black's Law Dictionary 468
(i
h
ed. 1999). Complainant cannot fathom given this
set
of facts how Respondent CLC can make this argument in good faith.
Respondent CLC again gives the Board a recitation
of "facts" that it alleges were
overlooked. (CLC Motion for Reconsideration at 11-13). These
"facts" were reviewed and
rejected
by both the Board and Appellate Court in CLC's permit appeal (PCB 01-170). The only
fact that matters is that since
2002, CLC has known, because the Appellate Court specifically
found, that the Frontier bonds were non-compliant financial assurance. Since that date, no
substitute financial assurance has been provided
by CLC. What CLC might have done if the
bonds were compliant or
if its permit was not denied by the Illinois EPA is wholly irrelevant.
The fact is the Frontier bonds were deemed non-compliant and no substitute financial assurance
has ever been tendered.
Respondent CLC's claim
of diligence is also undercut by the fact that twenty-eight (28)
other landfills were able to supply substitute financial assurance when Frontier was delisted.
(Complainant Post-Hearing Brief at
10). Twenty-eight (28) other landfills were diligent in
replacing non-compliant financial assurance. Even after litigating the issue to the Appellate
Court and losing, CLC still did not act diligently and submit substitute financial assurance. CLC
claims it now has to put up
70 - 80% of the bond value. (CLC Motion for Reconsideration at
13). Complainant sees this problem as one
ofCLC's own making.
Page 14 of 18
People v. CLC and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
Section 42(h)(2) requires due diligence on the part of Respondent CLC to come into
compliance with the Act and Board regulations. See People v. ESG Watts, Inc. (1998 WL 83678
at *6-7). Under this set of facts, CLC has done absolutely nothing short of an utter lack of due
diligence in attempting to comply with the financial assurance regulations under
Section 811.
Complainant requests this factor remain in strong aggravation
of a civil penalty and the Board's
June 18,
2009 Order be upheld.
c.
Section 42(h)(3) - any economic benefits accrued by the respondent because
of delay in compliance with requirements
CLC claims it realized absolutely no economic benefit due to any delayed compliance.
(CLC Motion for Reconsideration at 13). They allege that Blake Harris testified the bonds were
valid through
2006 and that the Landfill has not been able to accept wastes. (CLC Motion for
Reconsideration at 13-14). Complainant finds Respondent CLC's argument disingenuous at
best.
1.
The Testimony of Blake Harris
Respondent CLC claims that the Board ignored Blake Harris's testimony that the Frontier
Bonds were valid through
2006. (CLC Motion for Reconsideration at 13). However, CLC
plucks this statement out of 61 pages of testimony to support its position. In looking at Mr.
Harris's testimony as a whole, it is obvious that he believed the bonds were non-compliant as
financial assurance (9/11107 Trial Transcript, pp. 126,
130, 173-174) but valid on their face as a
monetary instrument
(9111107 Trial Transcript, pp.144-147). CLC's mischaracterization of Mr.
Harris's testimony to support the argument that CLC was providing compliant financial
assurance through
2006 therefore must fail.
Once Mr. Harris's testimony is looked at in its entirety, it is obvious that compliant
financial assurance was not supplied
by Respondent CLC since at least 2000. Complainant
Page 15 of 18
People v.
eLC
and City of Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June 18,2009 Board Order
requests that the Board uphold its civil penalty detennination that CLC was gaining an economic
benefit from November 16,
2000 (when the violation notice was sent to CLC alerting them of
Frontier's delisting) to September 11, 2007 and dismiss CLC's attempt to revise Mr. Harris's
testimony to meet its needs.
2.
CLC's
"inability" to accept wastes
Respondent CLC claims its inability to accept waste has resulted in no economic benefit
to
CLC. (CLC Motion to Reconsider at 15). However, CLC had been accepting wastes at the
Landfill
(See 9111107 Trial Transcript, pp. 58 - 74) and has continued to do so up to at least
April 29,
2009. (See Exhibit A). Again, it is unfathomable that CLC would be accepting these
wastes, albeit illegally, free
of charge.
Complainant requests the Board disregard CLC's claims that it has not derived any
economic benefit due to delayed compliance. The testimony
of Mr. Harris and testimony and
affidavit
of Mr. Retzlaff support the Complainant's position that CLC has indeed gained an
economic benefit from its non-compliance
... and continues to do so even after hearing on this
matter in
2007. Complainant requests the Board uphold the civil penalty detailed in its June 18,
2009 Order.
D.
Claim on Frontier Bonds
CLC claims that if the Board allows the Agency to make a claim on the Frontier bonds
and collect a civil penalty, it will be allowed to recover twice from the same allegation. (CLC
Motion for Reconsideration at 16). The issue here is that providing compliant financial
assurance does not act as a
"recovery" by the State. Financial assurance is required to ensure
that the landfill owner/operator has the financial ability to close the landfill in compliance with
the Act and Board regulations in order to protect the public health and the environment. A civil
Page 16 of 18
People v. CLC and City of Morris,
PCB 03-191
Complainant's Response
to CLC Motion to Reconsider June 18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
penalty, on the other hand, serves a completely different purpose, which is spelled out in Section
33 and 42 of the Act; those monies do, however, go to the State of Illinois. Respondent CLC's
characterization of a "double recovery" completely misrepresents the function of the statutory
proVISIOns.
At hearing, Mr. Harris testified that the collateral put up for the Frontier bonds may be
the only money that State may be able
to collect if it becomes necessary for the State to close the
landfill. (9/11107 Trial Transcript, pp. 144-147). Additionally, the Board admitted
Complainant's testimony regarding the Frontier bond settlement offer
of $400,000. (June 18,
2009 Board Order at 19 - 22). This $400,000 settlement amount is far short ofthe current cost
estimate
of$17.4 MM required for closure / post closure care of the Landfill. Finally, the Board
has already specifically stated that
"this sum (the $17.4 MM) may be reduced by any amount
IEPA has or will receive from its claim against the Frontier
bonds." (June 19,2009 Board Order
at 35). There is no double recovery for the Complainant.
Complainant requests that the Board reject
CLC's contention that any claims made on the
Frontier bonds would somehow result in a
"double recovery" for the State.
VII.
CONCLUSION
Based on the foregoing, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Illinois Pollution Control Board:
1.
Deny Respondent CLC's Motion for Reconsideration on the merits;
2.
Uphold the Board's June 16,2009 Order requiring Respondents to:
a.
post financial assurance in the amount of$17,427,366.00;
b.
provide updated cost estimates for closure/post closure care;
c.
upgrade financial assurance for closure and post closure care; and
Page 17 of 18
People v. CLC and City a/Morris,
PCB 03-191
Complainant's Response to CLC Motion to Reconsider June
18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
d.
cease and desist from accepting any additional waste at the Site, further
violations
of the Act and the Boards regulations;
3.
Uphold the Board's June 16,2009 Order requiring CLC to pay a civil penalty of
$1,059,534.70; and
4.
Uphold the Board's February 16, 2006 Order finding summary judgment in favor
of Complainant.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
Assistant Attorneys General
Environmental Bureau
Illinois Attorney General's
Office
69 W. Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-0609
(312) 814-5388
Page 18 of 18
People v. CLC and City of Morris,
PCB 03-191
Complainant's Response
to CLC Motion to Reconsider June 18,2009 Board Order
Electronic Filing - Received, Clerk's Office, August 26, 2009
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
.
.
.
Spec.ialist 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 investigation 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"), Illinois 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("Landfill"). 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 per.mitted owner of the
Landfill is the City of Morris.
1
EXHIBIT
I~
---===----
"
.
Electronic Filing
~
Received, Clerk's Office, August 5, 2009
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
p~rcel
A. The waste consisted
of asphalt shingles, street sweepings, and assorted debris.
7.
On April 29, 2009, I aqain inspected the Landfill.-
Upon arriving I met with James Pelnarsh, Site Manager for
Community Landfill Colt.\pany.
B.
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
'\ t.
Electronic Filing - Received, Clerk's Office, August 5, 2009
dispo'sed at the Landfill on April 23, 2009. I was able to
deter.mine 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. E'elnarsh 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 dwnping 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) come 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 A1I'PIAN'l' SAYBTH NOT.
'3
Electronic Filing - Received, Clerk's Office, August 26, 2009
Electronic Filing - Received, Clerk's Office, August 5,2009
MARK
F
Subscribed and sworn before me
this
let
day of June, 2009
4
CERTIFICATE OF SERVICE
I, JENNIFER
A.
VAN WIE, an Assistant Attorney General, certify that I caused to be
served
by Electronic Filing and First Class United States Mail, the foregoing Notice of Filing and
Complainant's Response to Community Landfill Company, Inc.
's Motion for Reconsideration of
the Illinois Pollution Control Board's Order dated June 18,2009, to the parties named on the
attached service list,
by depositing same in postage prepaid envelopes with the United States
.
2:r
Postal Service located at 100 West Randolph Street, Chicago, Illinois 60601 on August)6, 2009.
Electronic Filing - Received, Clerk's Office, August 26, 2009
