RECE~VED
CLERKS OFFICE
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
JUN
012004
STATE OF ILLINOIS
Pollution
Control Board
VILLAGE OF SOUTH ELGIN,
)
)
Complainant,
)
No. PCB 03-106
)
vs.
)
(Enforcement)
)
WASTE MANAGEMENT
OF ILLINOIS, NC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached
Service List
PLEASE TAKE NOTICE that on June 1, 2004, we filed with the Illinois Pollution
Control Board, the attached WASTE MANAGEMENT
OF ILLINOIS,
INC.’S RESPONSE
IN OPPOSITION TO THE VILLAGE OF SOUTH
ELGIN’S
MOTION FOR SUMMARY
JUDGMENT in the above entitled matter.
W
TE MANAGEMENT OF ILLINOIS, NC.
B)~L/
I
One ofIts A
orneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161
North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Attorney RegistrationNo.
1953923
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~ERK’S
OFFICE
JUN
012004
VILLAGE OF
SOUTH ELGIN,
)
STATE OF ILLINOIS
a municipal corporation,
)
Pollution
Control Boarc~
)
Complainant,
)
)
v.
)
No. PCB 03-106
)
(Enforcement)
WASTE MANAGEMENT OF
)
ILLINOIS,
INC.,
)
)
Respondent.
)
WASTE MANAGEMENT OF ILLINOIS, INC.’S RESPONSE
IN OPPOSITION TO THE VILLAGE OF SOUTH ELGIN’S
MOTION FOR SUMMARY JUDGMENT
WASTE MANAGEMENT OF
ILLINOIS,
iNC. (“WMII”), by and through its attorneys,
Pedersen & Houpt, P.C., submits this response brief in opposition to the Village of South Elgin’s
(“Village”) Motion for Summary Judgment.
INTRODUCTION
The Village moved for summaryjudgment on the only issue raised in its Complaint,
i.e.,
whetherby seeking to develop a waste transfer station on an 8.9-acre area in the southern part of
the Woodland landfill property, WMII has violated: (i) Condition
4 ofthe September 13,
1988
local siting approval forthe Woodland III landfill expansion granted by the Kane County Board
in Resolution 88-155 (“Resolution
88-155”)
that “The site, commonly known as the Woodland
site, shall not be expanded further”; and (ii) Condition 2 ofResolution 88-155 that
“That the site
will be
developed and operated in a manner consistent with the representations made at the
public hearing in this matter held on July 26,
1988 and to all applicable laws, statutes, rules and
regulations of the Illinois Environmental Protection Agency, and the Illinois Pollution Control
390304
Board, or their successors, as may be now orhereafter in effect and which are applicable to this
site.”
The Village is not entitled to summaryjudgment for the following reasons.
The Village
has not proven that WMII’s proposal to site a waste
transferstation
constitutes an “expansion” of
the Woodland III landfill.
Furthermore, the Village has not established that WMII made any
“representations” at the July 26,
1988 public hearing or anywhere else concerning an end use
plan suchthat it became a condition to Resolution
88-155.
Finally, the Village has not
established that WMII’s proposal to develop a waste transfer station would prevent the
implementation ofan end use plan.
Therefore, the Village’s request for summaryjudgment must
be denied.
ARGUMENT
I.
STANDARD OF REVIEW
Summaryjudgment is warranted only where a case presents no genuine issue ofmaterial
fact, and
where the case can be disposed ofby the application ofrecognized legal principles.
Dowd & Dowd,
Ltd. v.
Gleason,
181
Ill. 2d 460, 483,
693 N.E.2d 358, 370 (1998); Hansen v.
Ruby Construction Co.,
155
Ill. App.
3d
475,
480, 508 N.E.2d 301, 303 (1st Dist.
1987); People
v.
Jersey Sanitation Corporation, No. PCB 97-2 (April 4, 2002).
The moving party bears the
initial burden ofproduction to prove the non-existence of any triable issue ofmaterial fact, and
the motion must be
supported with admissible evidence.
Chicago Park District v. Richardson,
220 Ill. App. 3d 696, 703,
581 N.E.2d 97,
101
(1st Dist.
1991), appeal denied,
143 Ill. 2d 636,
587
N.E.2d 1012
(1992).
It is axiomatic that in ruling on the motion,
all ofthe evidence and all
ofthe inferences reasonably drawn therefrom must be considered, and the evidence and
inferences must be viewed in the light most favorable to the non-moving party. j~j~
390304
2
II.
THE VILLAGE HAS FAILED TO DEMONSTRATE, AS A MATTER OF FACT
OR LAW, THAT WMII’S PROPOSAL TO
SITE A WASTE TRANSFER
STATION VIOLATES
ANY
OF THE CONDITIONS IN RESOLUTION 88-155
A.
The Village Has Not Proven That WMII’s Proposal to Site A Waste Transfer
Station Constitutes An “Expansion”
ofThe Woodland III Landfill In
Violation of Condition 4
ofResolution 88-155
WMII does not dispute that Kane County imposed certain conditions
as part ofits siting
approval in Resolution
88-155.
W~vllI
asserts that there are no disputed issues offact regarding
the meaning ofCondition
4 ofResolution
88-155.
Condition
4 states:
“The site, commonly
known as the Woodland site, shall not be expanded further.”
Condition
1
defines the term
“Woodland site” as “the areacomprised ofthe Woodland I, II, and III landfill sites.”
Thus, the
plain and unambiguous language ofConditions
1
and 4 of Resolution 88-155 clearly states that
the only
limitation placed on WMII with respect to the Woodland site concerns the further
expansion ofthe sanitary landfill.
Despite the plain language ofCondition 4, the Village contends that its prohibition
extends to the developmentofa waste transfer station on a southern portion ofthe Woodland
property.
This contention is unsupported.
The undisputed facts demonstrate that while
Condition
4 may prohibit WMII from seeking further expansion ofthe Woodland III landfill, it
does not, in its express language or its intent, apply to the development of a waste transfer station
on the Woodland property.
On April 29, 2004,
WIVIII filed a Motion for Summary Judgment on the ground that
neither Condition 4, nor any other condition in Resolution
88-155,
contained a prohibition
against the development ofa waste transfer station on the Woodland property.
In support of
WMII’s Motion for Summary Judgment, WMII presented the deposition testimony ofMr.
Donald Price, the WMII vice president who signed the July 8,
1988 letter that became part of
390304
3
Resolution
88-155 as a result ofWMII’s representations at the July 26 public hearing.
WMII
also presented the deposition testimony ofMr. Thomas Rolando, who was the mayor ofthe
Village of South Elgin in 1988 and to whom the July
8 letter was directed.
Mr. Price testified that the waste footprint ofWoodland III was configured to allow for
the possible future development ofa transfer station on a portion ofthe Woodland property.
(Price Tr. at 19-24)’.
By
excluding an area on the southern portion ofthe Woodland property
from the expanded waste footprint of Woodland III, WMH intended to permit the development
ofa transfer station.
(Price Tr. at 21-24).
Thus, Mr. Price did not intend or state in the July
8
letter that the agreement not to expand the Woodland landfill a third time was an
agreementnot
to develop a waste transfer station.
Mr. Rolando testified that the principal concern expressed by the Village concerning
Woodland III relatedto the possible danger to the Village’s water supply and the potential threat
ofgroundwater contamination.
(Rolando Tr. at
24~25)2.
Mr. Rolando further testified that,
through his discussion with the Village Board, he understood WMII’s statement that it would not
seek to
expand Woodland III to mean that WMII would not ask again to operate a landfill at the
Woodland site.
(“Rolando Tr. at 27”).
He acknowledged that the plain language ofthe July
8
letter stated that WMII would agree to no more expansions ofthe Woodland landfill site, and that
there was no reference in the July
8 letter to any agreement not to develop a transfer station on
the Woodland property.
(Rolando Tr. at 38-40).
Mr. Rolando stated furtherthat, as the matter of
a transfer station was never raised, neither he nor the Village Council understood that WMII’s
1
The deposition transcript ofDonald Price will be cited to herein as “(Price Tr. at
J.”
The
Price Deposition Transcript is attached as Exhibit A.
2
The deposition transcript ofThomas S. Rolando will be cited to herein as “(Rolando Tr. at
J.”
The Rolando Deposition Transcript is attached as Exhibit B.
390304
4
agreeing not to further expand the Woodland III landfill included an agreement not to develop a
waste transfer station.
(Rolando
Tr. at 40-41, 59-60).
Although the Village has moved for summary judgment, it has not presented any facts in
support thereofto refute the testimony ofMr. Price and Mr. Rolando.
Thus, the undisputed facts
establish that Condition
4 was not intended to prohibit the development of a waste transfer
station.
In light ofthis factual evidence, as well as the plain language of Condition 4, there can
be no dispute that Condition
4 does not contain any prohibitions with respect to the development
of a waste transfer station on the Woodland property.
As no facts exist to support the Village’s contention, it attempts to argue that the
development of a waste transfer station constitutes
an “expansion” as a matter oflaw, and relies
on People v. Triem
Steel &
Processing, 5 Ill. App. 2d 371,
125 N.E.2d 678 (1st Dist.
1955)
and
Continental Waste Industries ofIllinois, Inc. v.
Mt. Vernon, PCB 94-138 (October 27,
1997).
However, in Triem Steel, the court considered the expansion ofan existing facility whose
operation was the same as the proposed expansion, that is, a transfer facility.
Likewise, in
Continental Waste, the issue before the Illinois Pollution Control Board concerned
an increase in
the amount ofwaste received and handled at an existing permitted waste transfer station.
The
Village has failed to present any legal authority in support ofits position that a proposal to
develop a new waste transfer station on a portion ofthe property that is separate and apart from
the landfill operations constitutes an expansion ofan existing sanitary landfill.
Underthe Illinois Environmental Protection Act (“Act”), the expansion ofa sanitary
landfill is distinct from the developmentofa waste transfer station.
The Act considers a transfer
station to be a fundamentally different activity than a landfill.
~
415 ILCS
5/3.445 (sanitary
landfill) and
5/3.500
(transfer station).
Moreover, the Act defines an “expansion” as the area
390304
5
“beyond the boundary ofa currently permitted”
sanitary landfill.
415 ILCS
5/3.330(b)(2).
As
such, an expansion ofa landfill involves the increase ofdisposal capacity through a vertical
and/or horizontal extension ofthe waste footprint in order to extend the period the landfill would
continue to receive and dispose ofwaste.
A horizontal or vertical expansion ofa waste footprint
is not equivalent to the development ofa waste transfer station.
Here, WMII attempted to develop a waste transfer station on an approximate 9-acre
portion ofthe Woodland property that
is separate and
apart from the 121-acre waste footprint on
which the landfill known as Woodland III was operated.
WMII’s application to develop a waste
transfer station
did not request an increase in the size, capacity or waste footprint ofWoodland I,
II, or III.
Therefore, it cannot be deemed to be a request to further expand the Woodland landfill.
The fact that the cover letterto a superseded application to develop the waste transfer station
inaccurately used the term “proposed expansion” does not alter the fact that, as a matter oflaw,
WMH’s attempt to site a waste transfer facility does not constitute an expansion ofthe Woodland
landfill.
Therefore, WMH’s attempt to develop a waste transfer station on a parcel ofland apart
from the Woodland landfill does not constitute a violation ofCondition 4 ofResolution
88-155,
and the Village
is not entitled to summary judgment on this issue.
B.
The Village Has Not Established That WMII Made Any Representations At
The July
26,
1988 Public Hearing Concerning An End Use Plan
The Village contends that Condition 2 of Resolution 88-155 contains a condition that
WMII turn the entire Woodland site into a passive recreation area post-closure
and, therefore,
WMII’s proposal to develop a waste transfer station violates that condition.
However, Condition
2 provides only: “That the site will be developed and operated in a manner consistent with the
representations made at the public hearing in this matter held
on July 26,
1988 and to all
390304
6
applicable laws, statutes, rules and regulations ofthe Illinois Environmental Protection Agency,
and the Illinois Pollution Control Board, ortheir successors, as may be now or hereafter in effect
and which are applicable to this site.”
Thus, the plain language of Condition 4 does not contain
any prohibition against the development ofa waste transfer station, nor does it contain a
condition concerning the development of an end use plan forthe Woodland site.
In fact, not one
ofthe conditions
contained in Resolution 88-155 in any way addresses the issue of end use plans
orpost-closure proposals.
Nonetheless, the Village argues that WMII made a representation at the July 26 public
hearing concerning its obligation to implement an end use plan, and that this representation was
included in Condition 2.
The Village relies on a half-page excerpt from WMII’s siting
application for Woodland III which briefly discussed the proposed end use for the site.
However,
a section in an
siting application discussing proposals in general terms does not constitute a
representation.
The Village also
relies on three sentences, taken out of context, that were made by Mr.
Gerard Hamblin at the July 26 public hearing.
Mr. Hamblin testified at the July 26 public
hearing in his capacity as design engineer and gave his expert opinion on whether the design of
Woodland III would protect the health, safety and welfare ofthe public,
i.e.,
whether the siting
application satisfied criterion (ii) of Section 39.2(a) ofthe Act.
Mr. Hamblin was not presented
at the hearing as an expert to testify on the end use plan.
He certainly did not make any
representations during his testimony on criterion (ii~Yregardirigan end use plan that would be
binding on WMII, or that were intended to be made a part of Condition 2.
Indeed, it would be
absurd to interpret Condition 2
as turning every statement made at the July 26 public hearing into
a binding representation, and ultimately a separate condition ofthe siting approval.
390304
7
Rather, it is
clear that Condition 2 was designed to incorporate as conditions to the siting
permit the representations made by WMII in the July
8 letter, which were not only read in to the
record at the July 26 public hearing by WIvIll’s attorney, but were also attached to Resolution 88-
155
as an exhibit.
On the other hand, neither WIvilI’s attorney, nor anyone else
on WMII’s
behalf, made any representations at the July 26 public hearing about the end use plan.
Nor were
there any
such representations contained in the July
8 letter.
As such, none ofthe conditions
contained in Resolution
88-155,
including Condition 2, concern an end use plan for the
Woodland site, nor were they intended to.
Because Resolution 88-155 does not contain a condition that WMII turn the Woodland
site into a passive recreation area post-closure, WMII’s proposal to develop a waste transfer
station is not a violation ofthe
local siting approval, and the Village is not entitled to summary
judgment on this issue.
C.
The Village Has Failed To Present Any Facts That WMII’s Proposal To Site
A Waste Transfer Station Would Prevent The Implementation Of An End
Use Plan
Notwithstanding the foregoing arguments, WIVHI has not failed or refused, and is not
refusing, to implement an end use plan for the Woodland site.
In fact, WMII intends to take
whatever steps are necessary and appropriate to implement an
end useplan.
The Village has not
presented any facts to the contrary.
Instead, the Village states that it is entitled to summary
judgment based on its unsupported statements that WMII’s attempt to develop a waste transfer
station constitutes a violation ofConditions 2
and 4 ofResolution 88-155.
However, WMII’s
attempts to site a waste transfer station do not equate to a failure or refusal to implement an end
use plan for the Woodland site.
390304
8
The Village’s motion for summary judgment also presumes that Resolution 88-155 and
WMII’s application to site Woodland III contained a final and definitive end use plan, and that
WMH, alone, is responsible for implementing any such plan.
However, any steps toward
implementing an end use plan must first be coordinated with, and approved by,
the appropriate
governmental authorities.
The Woodland III application specifically states that “post
closure
on-site improvements to facilitate the end use program will be the responsibility ofthe Kane
County Forest Preserve District or other public recreation providers.”
($~
Village’s Motion for
Summary Judgment, Ex.
6 at p.
11).
To date, nothing has been approved or adopted.
Therefore,
unless and until WMII receives the approval and assistance ofthe appropriate authorities,
WlvllI
is unable to implement an end use plan.
The practical reality is that once the requisite agreements and
approvals to implement an
end use plan are obtained, the plan can be implemented.
The implementation will occur in stages
and will take years to complete.
Under such circumstances, WMII’s present attempts to
site a
waste transfer station on a southerly 8.9-acre portion of the Woodland property will have no
effect on
WMII’s ability to implement an end use plan, once such plan is agreed upon and
approved by all necessary parties.
390304
9
CONCLUSION
For all ofthe foregoing reasons, WASTE MANAGEMENT
OF ILLINOIS, INC.
respectfully requests that this Board deny the Village ofSouth Elgin’s Motion for Summary
Judgment, grant WASTE MANAGEMENT OF ILLINOIS, INC.’s Motion for Summary
Judgment, and award such other and further relief as it deems appropriate.
Donald J. Moran
Lauren Blair
PEDERSEN
&
HOUPT,
P.C.
161
North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Respectfully Submitted,
W
E MANAGEMENT OF
ILLINOIS, INC.
By~&/
C
One ofItstttorneYs
390304
10
PROOF OF SERVICE
Victoria L. Kennedy, a non-attorney, on oath states that she served the foregoing
WASTE MANAGEMENT OF ILLINOIS, INC.’S RESPONSE IN OPPOSITION TO THE
VILLAGE OF SOUTH ELGIN’S
MOTION FOR SUMMARY JUDGMENT on
the
following party by depositing same in the
U.S. mail at 161
N. Clark
St., Chicago, Illinois
60601,
at 5:00 p.m.
on this
1st day ofJune, 2004:
Mr. Derke J. Price
ANCEL, GUNK, DIAMOND, BUSH,
DICANNI
&
ROLEK, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois
60603
V~ALL~y~
Victoria L. Ken4ed’~ç
390528
2
