~?E C E ~V
F
t~
CLERK’S OFFI~E~
i~P~
0 ~2005
STAlE OF ILUNOIS
OFFICE OF THE ATTORNEY GENERAL
POll~t~on
Control
Board
STATE
OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
April
1, 2005
The
Honorable Dorothy Gunn
Illinois Pollution
Control
Board
State of
Illinois Center
100
West Randolph
Chicago,
Illinois 60601
Re:
People
v.
Jersey Sanitation
Corporation
PCB No. 97-2
Dear Clerk Gunn:
Enclosed for filing please
find
the original
and
ten copies of a
NOTICE
OF
FILING
and
COMPLAINANT’S
RESPONSE
TO
RESPONDENT’S
MOTION
FOR
RECONSIDERATION
in
regard to the above-captioned matter.
Please file the original and return a file-stamped copy of the
document to
our office
in
the enclosed, self-addressed,
stamped
envelope.
Thank you for your cooperation
and consideration.
Very truly yours,
Jane
E.
McBride
Environmental Bureau
500 South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
JEM/pp
Enclosures
500
South Second Street,
Springfield, Illinois
62706
•
(217)
782-1090
•
TTY: (217)
785-2771
•
Fax: (217)
782-7046
100
West
Randolph Street, Chicago,
Illinois
60601
•
(312) 814-3000
•
TTY:
(312) 814-3374
•
Fax:
(312) 814-3806
1001
East Main, Carbondale, Illinois
62901
•
(618) 549-6400
•
YT’Y:
(618) 529-6403
•
Fax:
(618) 529-6416
E~.
RECE~VE~D
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
A
~4
20~5
STATE OF
ILLiNOIS
Complainant,
Pollution Control Board
v.
)
PCB
NO. 97-2
)
(Enforcement)
JERSEY SANITATION
CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
To:
Stephen
F.
Hedinger
Attorney at
Law
2601
South
Fifth
Steet
Springfield,
IL
62703
PLEASE TAKE NOTICE that on
this date
I mailed for filing with the Clerk of the Pollution
Control
Board
of
the
State
of
Illinois,
COMPLAINANT’S
RESPONSE
TO
RESPONDENT’S
MOTION FOR RECONSIDERATION, copies of which are attached hereto and herewith served
upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
£
NE E. McBRIDE
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield,
Illinois
62706
217/782-9031
Dated: April 1, 2005
CERTIFICATE OF SERVICE
I hereby certify that
I did on April
1,
2005, send by First Class Mail,
with postage thereon fully
prepaid, by depositing in a United States Post Office Boxa true and correct copy of the
following
instruments entitled NOTICE OF FILING and COMPLAINANT’S RESPONSE TO RESPONDENT’S
MOTION
FOR
RECONSIDERATION
To:
Mr.
Stephen Hedinger
Hedinger Law Office
2601
South
Fifth
Street
Springfield, Illinois 62703
and the original and ten copies by First Class
Mail with
postage thereon fully prepaid of the same
foregoing
instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
State
of Illinois Center
Suite 11-500
100 West Randolph
Chicago,
Illinois 60601
A copy Wa
isosent by First
Class Mail with
postage thereon fulY prepaid
To:
Carol Webb
Hearing
Officer
Pollution Control
Board
1021 N. Grand Avenue East
Springfield,
Illinois 62794
)~feE.
McBride
Assistant Attorney General
This filing
is
submitted on
recycled paper.
P ECE
GV
ED
CLERK’S OFFICE
AFR
042005
BEFORE THE ILLINOIS POLLUTION
CONTROL
BOARD
STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control Board
)
Complainant,
)
vs.
)
PCB
No. 97-2
)
JERSEY SANITATION
CORPORATION,
an Illinois
corporation,
Respondent.
COMPLAINANT’S RESPONSE TO
RESPONDENT’S
MOTION
FOR RECONSIDERATION
NOW
COMES Complainant,
PEOPLE OF THE
STATE OF ILLINOIS (hereinafter, the
“Complainant”) by LISA MADIGAN,
Attorney General of the State of Illinois,
and
hereby
responds to Respondent Jersey Sanitation Corporation’s (hereinafter, the “Respondent”) Motion
for Reconsideration of the Order entered
by the Illinois Pollution
Control
Board on
February
3,
2005,
as follows:
1.
The Board’s order was dated
February 3,
2005, and
received
by Complainant
on
February 9, 2005.
The Complainant received the Respondent’s motion for reconsideration
on
March 21, 2005.
The motion
is dated
March
18,
2005.
The motion
is dated
37
days after the
Complainant received
the Board order,
and
42 days after the order was issued
by the
Board.
The Complainant received
the
motion 40 days
after the Complainant
received the
Board
Order.
Pursuant the Section
101 .300 of the Board’s
Procedural
Rules,
35
III.
Adm.
Code
101.300,
service
by
U.S. Mail is presumed completed fourdays after
mailing.
Pursuant to
Section
101 .520 of the Board’s procedural rules, 35111. Adm. Code
101.520,
a motion for
reconsideration
is to be filed within
35 days
after receipt of the order.
Complainant objects to
the motion on the basis that it is untimely.
It is late.
The actual filing date exceeded the time
limit for filing such a motion, as
set forth
in 35
Ill.
Adm.
Code
101.520.
2.
Complainant responds to
the Respondent’s
motion,
as follows:
(A)
Illinois decisions
reflect the generally acknowledged authority of the
Board to takewhatever steps are necessary to rectify
the problem
of
pollution and to
correct instances of pollution on a case
by case
basis.
Discoveiy South
Group,
Ltd.
v.
The Pollution
Control Board,
275
Ill. App.
3d
547
(1st Dist.,
1995),
656
N.E. 2d
51;
W.F.
Hall Printing
Co.
v.
Environmental Protection Agency,
16
Ill App.
3d
864, 868
(1st Dist.,
1973),
Mystik Tape
v.
Illinois Pollution
Control Board,
16
Ill. App. 3d 778
(1St Dist. 1973);
(B)
Item E in the prayer for
relief
in every count of the Second Amended
Complaint, filed in this matter on January 3, 2001, is a request for costs
and attorney’s fees; and item E of theComplainant’s
“Conclusion” section
of its first post-hearing brief
states as follows
: “Award Complaints its
costs and
reasonable
attorney fees.
A calculation
of said costs
and fees
shall be
provided with
Complainant’s reply brief.”
Complainant’s first
post-hearing brief included multi~calculations of the ongoing.and
•~.
repeat nature of the various violations.
Complainant’s reply brief
included an affidavit from
counsel, attesting to
the expenditure of at
least
154 hours of time on the case.
The Board’s decision astutely pointed
out
that it was
awarding attorney fees for the “first”
154 hours spent enforcing
this matter.
It
is true that the actual time spent on this case by
Complainant’s attorney amounts
to
multiples
of 154.
Respondent,
by
failing to raise any objection in its response brief to Complainant’s
previous prayers and Complainant’s assertion in Item E of the conclusion
of Complainant’s first brief, waived any claim
it might
have regarding
attorney fees.
It is Complainant’s position that Respondent has no claim,
2
because
it
certainly cannot legitimately challenge the fact that
Complainant’s counsel
has spent at least
154 hours
on this
matter;
(C)
Any and all discretions regarding facts that appear in the recitation of
facts in the Board’s order, asserted
in
items 4
(a
-
f) of the Respondent’s
motion
compared to that which appeared in
the
record
are
either (1)
irrelevant to
the standards that are to
be
applied
in this matter, or (2) in
reality do not constitute “facts” but are instead
a perpetuation of the
erroneous
statements and flawed arguments that have been
repeatedly
put forth
by the Respondent in this
matter.
(D)
Respondent’s attempt at mockery of this enforcement action
in paragraph
5 of the motion
is insulting
to the
Board
and. this state’s interest in
..
protection
of the environment,
and
it is repulsively arrogant.
It is the
same arrogance this Respondent has
displayed throughout the years,
refusing
to address groundwater issues
at the site for
13
years,
r~peatedly
(and
currently) failing
to rnc:t financia
assurance
requirements,
mounting
legal
challenges and yet simultaneously claiming
insolvency, and taking
every advantage
of the full 200 acre property to
advance the
landfill
business it purchased
and yet only starting to
seriously bring the Jersey Sanitation
Landfill
into
compliance once
RSC
was available
at the neighboring site to
manage the old
existing site
in
1995.
The Respondent did everything according
to
its own
agenda,
in
its
own good
time.
However, there
has
never been
time, and the time has
never come, for the Respondent to address the groundwater issues
at
the site.
Now arsenic levels are increasing
in
magnitude.
The arsenic
levels exceed the state’s groundwater
standards.
This still has
not
3
stirred
the Respondent into action.
It is very apparent that the
Respondent is not going
to address the arsenic,
or the other groundwater
standard exceedences,
until
it is
made to
do so.
The
Board
is certainly
within
its power and authority
to
order a remedy that will address
issues
of non-compliance
at the site.
The Respondent claims the groundwater
issues at Jersey Sanitation
Landfill
have been fabricated.
What an
absurd claim!
There
is no arguing with the sample results that are
contained
in the record of this
matter.
They exceed applicable
standards,
and
have for years.
This fact remains undisputed
in this case.
It is
sampling that was conducted
and submitted
by the Respondent,
and
has
not been challenged by the Respondent.
As set forth
by the
Board
.jn
its
order,
the
long record
of the Respondent’s failure to
bring the subject
landfill
into
compliance is a
record of violation
that justifies millions of
dollars in
penalties.
The penalty assessed
in
this matter is more than
fair.
1n.fac•~,muchof the penalty calculation
involved groundwate~compIianc~.
cost
avoidance and financial
assurance cost avoidance.~The
record
shows
that Anderson
Engineering provided
Respondent with a
cost
estimate of a mere $9,000.00 to conduct
a groundwater assessment,
something
that the Respondent was under an
obligation to
conduct
pursuant to
permit requirements,
and
Respondent declined to do
it!
The penalty
is justified, and,
as
stated above,
it is more than
fair.
The Board has
authority
to take whatever steps are
necessary to
rectify the problem of pollution
and to
correct instances of pollution on
a case by case basis
3.
As stated above,
complete with citations,
Iltinois decisions
have generally
acknowledged authority of the
Board
to take whatever steps are
necessary to
rectify the
4
problem of pollution and to
correct instances of pollution on a case by case basis.
In the instant matter,
Complainant put on
evidence, which was supported
by the
testimony of Respondent’s
experts, as to what steps
needed to
be taken to
bring the
landfill
into
compliance.
The
Board’s remedy
is consistent with the factual
data
and the expert testimony
presented
in this matter.
In the case of
Discovery South
Group,
275
III.
App.3d
at
559,
the
Court held,
in
upholding
the remedy set forth
in the Board’s order,
that “the Board’s action
was
not arbitrary or capricious since
it was
based upon expert evidence
provided by
both parties.
We
uphold the Board’s remedy.”
Further,
in the case
of
Kaeding
v.
The Pollution
Control
Board,
22
lll.App.3d
36 (2d
Dist.
1974),
316 N.E.2d 788, the court
held that “The Pollution
Control Board
is conferred with those powers that are
reasonably necessary to
accomplish the
legislative
purpose of the administrative
agency including imposition
of cease and desist
orders
and
monetary penalties for violation of the Environmental
Protection Act, and
thus the State’s
attorney does not have
to
bring the action to
enforce the provisions of the Act.
(Emphasis
added.)
The court based
its holding
on the case of
City of Waukegan
v.
Pollution Control
~.:
BOard,
57
lll.2d
170
(1974), 311
N.E.2d146, whe~in
it was
held that the legislature h~:~
conferred upon the Illinois Pollution
Cdntrol
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.
In
none of these
cases was the remedy a simple cease and
desist order.
All of the orders that were the subject of the courts’
decisions were orders that
required specific
compliance actions,
that is,
they were
all of the nature of a
mandatory
injunction.
The orders involved measures
necessary to achieve
compliance.
The decision in
People
v.
Agpro,
Inc.,
2005 WL 246213
(III.)
cited
by the Respondent, is
not applicable to
Board decisions.
Further, as
stated
by the Respondent,
the holding
in
Agpro
5
has been addressed
by
the legislature and the statute has
been amended to
provide for an
injunction, “prohibitory or mandatory,” to
restrain violation
of the Act.
Thus
it is
clear that it
is
the legislature’s intent that the tribunals enforcing
the Act be able to order compliance.
Agpro
is
the only authority cited by Respondent. The vacuum, that is, non-existence, of truly applicable
case law is indicative that Respondent’s
position
is not
and
cannot
be supported
by case law,
and is patently flawed and wholly erroneous.
Complainant
asserted
its claim for attorney’s fees in
the Second Amended
Complaint filed
in
January of 2001,
and
also
in
its first
post-hearing brief.
4.
Complainant stated
its
argumentwith regard
to
Respondent’s assertion that the
Board
wrongly awarded
attorney’s fees,
in p~ragraph
2(B) above, and will not restate it here.
Any
and
all
asserted
discretions regarding facts that appear in the recitation of facts
in
the
Board’s order,
bompared
to that which appeared in
the
record
are either (1) irrelevant to the
standards that are to
be
applied
in this matter, or (2)
in
reality do not constitute “facts”
but are
instead
a perpetuation of the erroneous
statements and flawed arguments that have been
repeatedly put forth
by the Respondent in this
matter.
5.
In response to
Paragraph
4(a) of the Respondent’s
motion,
it is wholly irrelevant
to
any finding
of.. ~olationin
this matter as
to when the
opIe that constitute the sharehoIders
.
.~ ..
of the Respondent corporation established residency in the vicinity of the Jersey Sanitation
Landfill
—
completely and wholly
irrelevant.
The time period
of the violations
is after the
Respondent corporation took control
of the subject facility.
The Respondent’s motive for
purchasing property,
a
portion of which constitutes the subject landfill,
is disputed
in this
matter.
The condition of the landfill prior to the Respondent’s taking
control of it is irrelevant to the fact
of the violation once the
Respondent had
possession,
control
and
ownership of the subject
landfill.
The
Respondent’s
length of residency and motives are not
relevant to any aspect of
this case, not to the Section 33(c) factors and not to the Section 42(h) factors, which is why
Complainant objected to the testimony and evidence in the first place.
Nonetheless, the
evidence was allowed
to
be
heard
and entered
in the record and
thus Complainant presented
6
evidence
that disputed
these
contentions.
The statement cited by Respondent in
Paragraph 4(a) of
its
brief
is with regard
to a
sentence included
in the Board’s finding concerning the Section 33(h) factors,
in particular
factor (iii),
the suitability or unsuitability of the
pollution source to the area in which
it is located,
including the question of priority of location
in the area involved.
The
issue
of any priority
of
location
is certainly negated
by
the fact the Respondent purchased the landfill and
operated
the
landfill
in a gross
state of non-compliance for five years.
As stated in
Complainant’s
brief,
Jersey Sanitation
Landfill may have
no longer been a
nuisance to
the shareholder neighbors
after they bought it, since it now was their landfill,
but the
record
shows
that non-shareholder
neighbors continued
to
submit complaints
to the Illinois
EPA after ownership of the
landfill was
transferred.
The landfill
existed
in
gross non-compliance with
uncovered
refuse
and leachate
flowing
into the nearby creek for years,
in fact from
1989 to
1994-1995.
The
record
contains
very explicit photographs,
written document and testimony regarding the condition
of the
subject landfill during
the years of
1989 through 1994-1 995.
As
stated ahe”c
the
motive of this Respondent in
purchasing the 200
acre parc~l
of
r
land is
in dispute
in this matter.
There is nothing
innocent about the Respondent.
The
shareholders were
in the landfill
business.
As
is clear from the record, they owned
multiple
landfills.
Further,
the record
strongly contests the notion that the Respondent has “successfully
closed”
the Jersey
Sanitation
Landfill.
The Board found
in this matter, that this
landfill
has existed
out of compliance
and
in
violation
of the Environmental Protection Act as specifically described
in
its order of February 3,
2005, for
15
years.
The order
is supported by the
record.
6.
In
response to
Paragraph 4(b) of Respondent’s
motion,
Respondent again
states
its position that the
landfill
was granted closure
effective September 30, 1994 and thus,
by a
7
miraculous leap of faith,
was therefore in
compliance with all applicable environmental
provisions on
that date.
Procedurally,
in fact,
and on any imaginable
basis, this statement is
erroneous and
cannot and
is not supported by
the provisions of the
Illinois Environmental
Protection Act, any regulations promulgated
thereunder, or case law.
Complainant’s
response
to this argument appears on
pages 32 through 34 of its
reply brief,
and will
be repeated
here for
the benefit of this response:
On
pages 5
and 6 of
its
response brief, Respondent appears to
be making the
argument that at the time the Illinois EPA acknowledged receipt of Jersey Sanitation
Corporation’s certification of completion of closure,
the landfill was in compliance with
all
permit, regulatory and
statutory requirements.
Whatever Respondent’s statement is
supposed
to
mean
or infer, the truth
is that a certification of closure
merely certifies
exactly that which is stated
on
page 6 of
Parties Exhibit 41.,
the landfill’s Affidavit for
Certification
of Closure, dated
June
7,
1999.
The narrative included with the affidavit,
starting on
page
13 of the exhibit,
indicates that although final
cover work was
completed, surveyed,
tested and
certified ptthe landfill
in
September of 1994,.a delay
was caused
due
to the
issue of the final elevation.and
contours of the landfill.
Respondent did
not obtain siting approval for the overheight conditions at
the
landfill
until March
8,
1999.
As stated
in
the affidavit of certification of closure,
the subject
matter of the
certification is the establishment of the dirt and
vegetative final cover,
in compliance with
regulations,
and
confirmation of final
contours.
Respondent cites the case of
Bradd v.
Illinois EPA,
PCB 90-173 (May 9,
1991),
and 35
Ill
Adm
Code
807 508
in supç
r~
of i~s
s~E’~ement
on
page 6 that
‘n
~rantIng
thet
it
is believed Respondent is referencing the fact the
Illinois
EPA acknowledged
a
closure date of September 30,
1994 for the subject
landfill,
of coUrse,
the IEPA
acknowledged,
both as
a matter of fact and of law, that the landfill~wasin compliance
with all such
requirements as of that September 30,
1994.
What the
Illinois
EPA actually did
in the
1999 supplemental
permit, which also
acknowledged certification of closure,
was approve the landfill’s groundwater monitoring
plan with conditions.
In
Bradd,
Mr.
Bradd’s certification of closure was
denied for five
reasons,
one of
which was
his failure to submit a permit application
assessing the current groundwater
conditions
at his site
and proposing
an
adequate groundwater
monitoring program.
Bradd
v.
Illinois EPA,
PCB
90-1 73
(May 9,
1991),
slip op
at 3.
The condition
requiring
that Mr.
Bradd submit the assessment and program
plan was special
condition
15(b) of
his
permit.
The
Board
held: “Section 40(a)(a) of the Act (Ill. Rev.
Stat.
1989,
ch
111
1/~
par. I 040(a)(1)) provides,
if the Agency
refuses to grant or grants with
conditions a
permit under Section 39 of this Act, the applicant may, within
35 days,
petition for a
hearing
before
the
Board
to
contest the decision of the Agency.” (Emphasis added)
(see
also 35
III.
Adm.
Code
105.102(a)(2)).
Because
Mr.
Bradd
never appealed
Special
Condition
15(b) of Supplemental
Permit
No. 1988-248-SP or the Agency’s April 6,
1989
denial of his
proposed
groundwater monitoring
program within the above statutory time
frame,
he
has waived any objection to
the Agency’s imposition
of Special
Condition
8
15(b)
and
its denial of his
proposed
groundwater monitoring
program
the fact that
Special Condition
15(b) of
Supplemental
Permit
1 988-248-SP
had not been satisfied
was a sufficient basis for the Agency to deny
Mr.
Bradd’s Affidavit for Certification of
Closure and
not issue a Certificate of Closure for the landfill.
Bradd,
slip op
at 7-8.
The
Bradd
case does not stand for the proposition that issuance of Certification
of Closure constitutes acknowledgment by the Illinois EPA that a
landfill
is
in compliance
with all permit,
regulatory and
statutory requirements.
The case
upheld the
Illinois
EPA’s denial
of a
Certificate of Closure when a
landfill
failed to
meet a special
condition
requiring
submission of an
assessment and
acceptable
groundwater monitoring
plan.
This does not preclude the Illinois EPA,
in
its discretion, from
approving a groundwater
monitoring
plan with conditions
rather than
denying the
plan
altogether.
In the case of
Jersey
Sanitation Corporation
Landfill, the Illinois EPA approved the landfill’s
monitoring
plan with
conditions.
Contrary to
the characterization
made
by Respondent on page
5 of
its
response
brief,
that the Illinois
EPA’s October 5,
1999 letter (which
is actually the issuance of the
1999 supplemental permit) acknowledged compliance with all permit, regulatory and
statutory requirements, nothing in the October 5, 1999 document indicated any such
thing.
The document is entered
in the
record
as
Parties Exhibit
42.
Any assertion, made
by
the Board
as
to a date
of.closure or compliance,
particularly
every assertion supported
by the record as
to the actual
level of compliance at the landfill
on
any given date,
is a correct interpretation
of provisions
applicable to this site
and
regulatory
measures taken, such as
issuance of a permit.
The Respondent is
so non-specific in
its.
referer,ce to
~.-iy
of the Board’s alleged
assertions~
to render paragraph•.4(b) mootdue
to
vagueness.
The Respondent cites to
page numbers,
but nothing
more specific.
This is
particularly true with
the reference to
page 7 of the order,
it is completely unclear as
to what on
that page is relevant to Respondent’s stated argument. What sentences, paragraphs, actual
dates
or actions,
is the Respondent referring to
in the assertions set forth
in Paragraph 4(b)
of
its
motion?
Complainant objects
to this paragraph, and the Board’s
giving
it any credence,
because it is too vague.
Respondent has failed
to
identify the specific actions
and/or dates
of
alleged activities,
and thus
has failed to
provide sufficient specificity
so as to
provide notice of
the actual
nature of the assertion.
7.
In
response to Paragraph 4(c) of the Respondent’s motion,
Complainant again
directs the Respondent’s and
Board’sattention to
the Complainant’s original
and reply post-
9
hearing
briefs
where this
issue was addressed.
In
Paragraph 4(c),
Respondent claims that the
landscape waste at issue was
not within the permitted
boundary,
and that
Ms.
Shourd’s
testimony to this effect was undisputed.
Nothing
could
be further from
the truth.
As stated
in
the Complainant’s original
brief, on
pages 93 through 95, upon receiving
a letter with
Ms.
Shourd’s
contention that the landscape waste was
not on the property, the
Illinois
EPA
inspector assigned to the subject landfill double
checked the permitted
boundary
and
went back
out to the site to
compare the permitted. boundary with the location
of the landscape waste.
Landscape waste
at issue was within the permitted
boundary.
In
Paragraph 4(c),
Respondent
goes on
to state that
the Board’s ruling
relied
upon a ground never argued
by Complainant.
Respondent,
however, does not state what “ground” it believes the
Board
to rely
on that the
Complainant never arg.ued.
From the Complainant’s
review of the briefs, all grounds
relied
upon
by the Board in
its order were raised
in
Complainant’s
briefs.
The ground
that both the
landfill waste
that existed on the property,
and that which existed off the property constituted
violations of the Act is raised
in Complainant’s original
post-hearing brief on
pages 94 and 95.
In~thatRespondent~.os
failed to
specifically described
the “ground”it he!V’tes
not.to. have
been.
..
raised by Complainant,
Complainant objects
to
the assertion because Respondent has failed
to
state specifically the nature of the assertion and
therefore
Complainant does
not have sufficient
information to
adequately respond.
8.
In paragraph 4(d) of
its
motion,
Respondent completely mischaracterizes the
Complainant’s allegations of violation concerning groundwater,
and the Board’s findings in
its
order.
Again, as
it
has
done time and
time again,
in objections,
in
argument at hearing,
and
in
its brief, Respondent has
attempted to deceptively define the groundwater issues
in terms of
permit requirements, and
in
particular permit requirements
that were
stricken by the
Board.
The allegations contained
in the second
amended
complaint,
and the evidence
.,.
presented at hearing
and discussed
in
the Complainant’s
briefs,
as well as the arguments
10
presented
in
Complainant’s
briefs,
all speak for themselves.
The allegations concern violation
of groundwater standards at
the site,
and violation of Section
12(a) and
1.2(d) of the Act, 415
ILCS 5/12(a),(d).
The exceedance of groundwater standards
in sampling results for the site
is
undisputed.
Complainant also presented
evidence at
hearing
regarding
the necessary remedy
for each
and
every groundwater allegation, and said
remedies were
attested to
by both the
Complainant’s experts and
the Respondent’s experts.
Contrary to Respondent’s
claims
in Paragraph
4(d),
as is apparent from the
record
in
this matter,
Respondent’s expert
did
not testify that “there was
no evidence
of trends”,
in fact,
their testimony supports
quite the opposite proposition.
Ken
Liss testified
that based on
the
sample results,
a trend
analysis was merited.
Further, not one of Respondent’s three experts
testified that “no evidence existed
to suggest th~
landfill
was causing any exceedances”,
and.
not one of the Respondent’s three
experts testified that “the groundwater activities
at
the site
were
in full
compliance with
the permit”.
In fact,
Mr.
Liss testified that given
all
of the
groundwater sampling
data available at the Jersey Sanitation
landfill
site, and
given that these
‘“results
indicate exceedances ofthe grour~voter standards, and given what the
.~
~rrentpermit.
.
-
requires, the current permit requires that a trend
analysis be performed.
Tr. for January
13,
2004.hearing
at 40 and 41, Complainant’s original
post-hearing
brief at pages 51
and 52.
Respondent
has failed
to
perform a trend
analysis
and failed to
conduct
a groundwater
assessment for the
site.
Mr.
Rathsack testified that,
under the existing permit,
if a trend was
believed
to
be developing,
a groundwater assessment was
merited.
TR at 398, and
page
50 of
Complainant’s original
post-hearing
brief.
In Paragraph
4(d), Respondent states that “this
Board,
however, changed the issue
to
one of violation of groundwater standards.
.
.
“The
second
amended
complaint clearly sets out allegations of groundwater standards.
Undisputed
sample results showing
exceedances of groundwater standards exist in
the record
of this
matter.
The Board
ruled upon
exactly what it was asked to
rule
upon
—
allegations of the
11
exceedence of groundwater standards.
Respondent goes on to
make the absolutely absurd
assertion that there was
no support for a finding
of violation
of groundwater standards, and
that
the
IEPA’s own conclusion
was that inadequate
evidence existed
of violation
of groundwater
standards.
There is nothing in
the record that would
offer one scintilla of support for these
statements.
The only thing
Complainant can think
of
is the argument addressed
by the
Complainant in
its reply brief on
page
12 and
13,
and
repeated
here:
Complainant has
set forth,
in great detail,
the evidence presented in the
record
and at
hearing
that serves as
the
basis for its Section
12(a) and
12(d) allegations, and
has
argued these allegations
in
Sections
B through H of its original
brief.
These
arguments will not be
repeated here.
Complainant has met
its
burden.
Respondent’s
case is completely void
of any
evidence that controverts
Complainant’s
evidence.
In
its
arguments,
Respondent relies solely on
the testimony of Complainant’s witnesses
that
indicates that,
due to
the fact Respondent has
completely abdicated
its responsibility to
address groundwater exceedences at
the landfill,
no
work has been
done to
assess the
excec’dences.
Thus,
other sources
have
not been eliminated from the analysis...
Respondent conveniently,
in its
argument,
takes
Complainant’s witnesses’ testimony out
of context.
Both citations to
the transcript, that attributed
to
Ms.
Nelson
and the
testimony attributed to
Ms.
Munie,
are surrounded
and qualified by the witnesses’
testimony that pursuant to the regulations, particularly 35
III. Adm.
Code 807.313 and
807.315,
the landfill cannot
cause or threaten water pollution.
It is the responsibility of
the landfill
to
conduct proper assessments to ascertain the source
of contamination.
Testimony of Joyce Munie, Tr. 40-47.
Despite permit requirements applicable to
~.3Fsey
Sanitation Landfill
for years,~i.~udi.ng~years
prior to
the recent permit
appeal,
.~
.
..~.
requiring Jersey to
perform
an assessment and confirm the appropriateness of
its
monitoring plan, the landfill has failed to do so.
The regulation found at
35
III. Adm. Code 807.315,
a
Part 807
provision,
is
particularly noteworthy at this juncture.
It states,
in
pertinent part:
Protection ofWaters of the State
No person shall cause or allow the development or operation of a sanitary
landfill
unless the applicant
proves to the satisfaction
of the Agency that no damage or
hazard will result to the waters of the State because
of the development and
operation of the sanitary landfill.
Pursuant to this regulation, as well as
Section
12(a) and
35
III. Adm.
Code
807.313, Respondent must prove to
the
Illinois
EPA that it is not existing
as a
hazard to
waters of the State,
which include
groundwater, or
is not otherwise contaminating waters
of the State.
Based
on the evidence presented
at
hearing, groundwater sample
results
have
indicated exceedences of the standard since
1991 at the landfill.
The
exceedences
have increased
in
magnitude over the years.
Respondent Jersey has
failed to
comply with
all permit
requirements designed to
address the groundwater
issues at the
landfill.
Respondent has not disputed, nor has
it presented any evidence
12
to contradict Complainant’s assertions,
that Respondent has
not performed
a single
assessment of the groundwater at the site.
Complainant has
presented evidence that
the groundwater
at the landfill
is exceeding standards, the
upgradient wells do not
indicate exceedences and
Respondent Jersey has
completely failed
to
comply with
35
Ill.
Adm. Code 807.315 and permit conditions
requiring itto perform
assessments
consistent with the requirements of
35
III.
Adm. Code 807.315.
As a
result, Jersey
Sanitation is
in violation
of Section
12(a) and
12(d).
Complainant has presented
detailed
evidence
as to
why this landfill does exist as
a water pollution hazard
upon the
land
—
evidence that has been
in the hands of
Respondent since the day it purchased
the landfill,
if not before.
The basic documentation was
generated
in
1973.
Respondent
itself submitted the documentation to
the Illinois
EPA.
9.
In
Paragraph 4(e), Respondent again
argues
a position that
it has
argued
throughout the proceeding and
that is that it did
not realize
economic benefit due
to
its non-
compliance.
The
Board,
in
its finding
on page
37 of its order indicates, “the $34,433 the People
request as representative
of the
costs
avoided
and the value
the People assigned to the
duration and
gravity of the violations,
$30,567,
are appropriate.”
(Emphasis added.)
Respondent’s
argument has
no merit,
since by failing
to
comply,
Respondent did
avoid the
costs of compliance.
Further,
Respondent’s argument that it
had
insufficient resources to properly run the
landfill and
meet the
costs of doing
business
is not a particularly strong
one.
The
Respondent
had
a choice as to
purchase or not to
purchase the landfill.
Respondent was
aware of the
challenges of this landfill, and
was aware of the regulatory climate.
The vast majority of the
penalty assigned
to cost avoidance was due to the Respondent’s
failure to
adOquately provide
financial assurance.
As the Board
stated in
its order,
on page
36, “the funding
of the financial
assurance is
an obligation every owner of a landfill
in
Illinois owes
the taxpayers
of this
State
and
is part and
parcel of the cost of doing
business
here,” citing
People
v.
ESG
Watts,
Inc.,
PCB 96-1 07 (Feb.
5,
1998).
The argument that
Respondent used
every dollar of revenue
generated
by the landfill for compliance is ‘disputed
in the record.
It is obvious
from the
record
in
this matter that the Respondent had
a number of businesses
associated with the 200 acre
13
property.
It is also
obvious from the
record
that there was
minimal compliance activity at the
subject landfill from 1989 through 1995.
It was
not until
1995, when
RCS,
Inc.
took over
management of the site, that compliance noticeably improved.
10.
In Paragraph
4(f),
Respondent claims that
there is no evidence to support the
Board’s conclusion that a $65,000 penalty
is necessary to
deter the Respondent.
Respondent
goes
on to make the absolutely absurd inference that there is
no
behavior exhibited
in or
associated with this matter that should
be
deterred, either
in
regard
to the Respondent itself or
others similarly subject
to the
Act.
The landfill
is
currently out of compliance
and has
been for
15 years.
Respondent,
currently,
is once again out of compliance with financial assurance
requirements.
Respondent, for
13
years,
has
done absolutely nothing to
address exceedences
of groundwater standards
at the
site... This
is. not behavior
to be
encouraged,
by this
.
.
Respondent or any other person similarly subject to
the Act.
In
fact, the Respondent is a
poster child for deterrence.
It has arrogantly
and very stubbornly refused
to ever address the
groundwater issues
at
this site.
The Respondent allowed the landfill
to
exist in a serious
state
of noncompliance for ‘five years:’
~curtimos~the
Illinois
EPA inspector ‘.~senied
bachate. from.
the
landfill
entering the nearby creek.
The groundwater issues that have existed
at
the site
since the very early
1990s
were predicted
in
a 1973 document,
that was included with the
Respondent’s
submittal to
the Illinois
EPA in
1989, as ramifications of the Respondent’s failure
to install environmental
protection measures
at the
site, such an
leachate
collection,
surface
drainage structures and
to ensure adequate cover
—
all of which were
required by
permit.
11.
Complainant’s
response to
Paragraph
5 of Respondent’s motion
is stated
in
paragraph 2(D)
above and will not
be repeated
here.
Complainant has just a few words to add
at this
point.
An
individual, such
as Ms.
Shourd, who was the only shareholder to testify,
who
feels entitled to something because of some alleged wrong
that was done to
her,
has a
natural
knee jerk
reaction
to
become arrogant and
insensitive
to the reality occurring around
her.
14
When a person becomes embittered
on the job, due
to some belief that he or she has been
wronged,
one
reaction
is to
become arrogant and
insensitive
to the
reality around him or her,
and to
so strongly believe something
is owed
him or her as
to begin
to justify his or her behavior
in taking
time or money, or whatever.
In
this case,
Ms. Shourd’s
belief system
is so
strong that
she was
wronged, she now
seems to
believe,
if her arguments are to
be taken
seriously, that
the state owes her the ability to
leave this landfill
in
a serious state of non-compliance for long
periods of time, and completely ignore
groundwater issues despite rising levels of arsenic.
Ms.
Shourd
has
not
been wronged by the State. She has
been
wronged
by her own
actions and judgment. She was wronged by her own arrogance, that is, by her beliefs thatshe
should be able to take on this landfill
and
the 200
acres
it sits on, pursue the landfill
business on
this pc.3perty, and yet be justified in failing
to adhere to
environmental regulations applicable
to
the old, existing landfill that is the subject of this action. Ms.
Shourd’s entitlement mindset is an
affront
to the public’s
interest in environmental protection.
She
has
been justifying
her actions
in purchasing
this landfill for
15 years, by ignoring the very serious compliance issues that exist
‘aL
ihe subject landfill.
To
this day,’ Rc~,.
Jndcnt’J6rsey Sanitation feels entitled to ‘ignore
..-
.~
-
~
environmental regulations
because
it
has allowed itself to
be consumed
by its own
poor
judgment and
arrogance.
12.
Respondent has
offered
no
new evidence,
or change in the law,
or any law for
that
matter, that would
suggest any
error in
the Board’s order
of February
3,
2005,
or that would
merit any change in the
Board’s decision.
15
WHEREFORE,
on the foregoing
grounds and for the foregoing
reasons,
Complainant
respectfully requests that the
Board
deny Respondent’s
motion
for reconsideration.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS,
exreL
LISA MADIGAN,
Attorney General
of the
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement
Division
BY:
Si—
L.
JANE
E.
MCBRIDE
Assistant Attorney General
500 South Second Street
Springfield,
Illinois
62706
(217)782-9031
16
