BEFORE THE ILLINOIS POLLUTION CONTROL BOA~~~

JUN

15

2004

VILLAGE OF SOUTH ELGIN,

)

p~~ToEn~cFoI~I

Board

Complainant,

)

No. PCB 03-106

)

vs.

)

(Enforcement)

)

WASTE MANAGEMENT OF ILLINOIS, INC.,

)

)

Respondent.

)

NOTICE OF FILING

TO:

See Attached

Service List

PLEASE TAKE NOTICE that on June

15,

2004, we filed with the Illinois Pollution

Control Board,

the attached WASTE MANAGEMENT

OF ILLINOIS, INC.’S REPLY TO

VILLAGE RESPONSE TO MOTION FOR SUMMARY JUDGMENT

in the above

entitled

matter.

W~~TE

MANAGEMENT OF ILLINOIS, INC.

By:~~/

~

One ofIts Aft

rneys

Donald J. Moran

Lauren Blair

PEDERSEN & HOUPT

161 North Clark Street, Suite 3100

Chicago, Illinois 60601

(312) 641-6888

Attorney RegistrationNo.

1953923

391313

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RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOQL~’~

OFFICE

JUN

15

2004

STATE OF ILLINOIS

VILLAGE OF SOUTH

ELGIN,

)

Pollution Control Board

)

Complainant,

)

No. PCB 03-106

)

vs.

)

(Enforcement)

)

WASTE MANAGEMENT OF ILLINOIS, INC.,

)

)

Respondent.

)

WASTE MANAGEMENT

OF ILLINOIS,

INC.’S

REPLY

TO VILLAGE

RESPONSE

TO MOTION FOR SUMMARY JUDGMENT

Waste

Management

of Illinois,

Inc.

(“WIN/ill”),

by

its

attorneys,

Pedersen

&

Houpt,

submits

this

reply

to

the

Village

of South

Elgin’s Response to

WMII’s Motion

for

Summary

Judgment.

I.

Condition

2 of the Kane

County

Woodland

III

Siting

Approval Does Not Require

the Implementation of a Conceptual End Use Plan.

The Village contends that Condition

2 ofthe Kane County Woodland

III

Siting Approval

requires that

the

entire

Woodland landfill property

be

developed

as

a

passive

recreation park

upon closure of the landfill.

(Village Response at

5.)

The plain

language of Condition

2

does

not even suggest,

much less

establish,

that WMII must develop a passive recreation park on the

entire Woodland property upon closure ofthe landfill.

Siting

conditions

should

be

construed

using

the

same

standards

that

guide

statutory

interpretation.

See

Radaszewski

ex

rel.

Radaszewski

v.

Garner,

Ill.App.3d,

805

N.E.2d 620,

623

(2d Dist. 2003) (administrative regulations are construed by same standards that

guide statutory interpretation).

The primary goal is to determine the intent of the drafter, and the

390900.1

---

best

indicator

of that

intent

is

the

language

of the

condition

itself.

People

v.

Bonutti,

338

Ill.App.3d 333,

341,

788

N.E.2d 331

(5th Dist.

2003).

A court may not read into the

condition

any provisions or exceptions that the drafter did not express.

Garner,

805 N.E.2d at 623.

Condition

2

states that

“the site

will be

developed

arid

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 Board, or their successors,

as may now or hereafter in

effect

and which are applicable to this site.”

The “representations made at the public hearing” were the

statements contained in the July 8,

1988 letter from Donald Price to Mayor Thomas Rolando that

were

read

into

the

record

of the

July

26,

1988

public

hearing

by

WMII’s

attorney.

These

statements did not refer to

any proposed end use for the property, much less require any specific

end

use to

be

implemented.

These statements

did not

indicate that

any

proposed end use had

been approved by

Kane

County

and other interested governmental units,

which

approvals were

prerequisite

to

any

implementation of such end

use.

Thus,

the plain

language

of Condition

2

does not require the implementation ofany proposed end use.

The

Village

argues

that

the

“representations

made

at

the

public

hearing”

include the

contents ofthe siting application and the testimony describing those contents.

(Village Response

at

3.)

However,

the

Kane

County

Board

gave

no

indication

that

it

intended

that

the

siting

application

and hearing testimony

be

considered the representations referred to

in

Condition 2.

The

Kane

County

Board did

not expressly

state this

intent,

as it could have done by providing

that the site be developed and operated “in a manner consistent

with the statements contained in

the siting application and the hearing testimony.”

Rather, the Kane County Board referred to the

representations made in the July

8 letter and read by WMII’s counsel at hearing,

and

made those

statements conditions

of siting

approval.

There

was

no

intent

to

include

a

proposed end use,

390900.1

2

---

described conceptually in the siting application but not approved by Kane County,

as a condition

ofsiting approval that must be implemented upon landfill closure.

Condition

2

referred to

the

representations

read

into the record

from

the

July

8

letter.

Those representations neither refer nor relate to

any

end use ofthe property.

Hence, Condition

2

requires no implementation of an end use as a condition ofsiting approval.’

II.

The

Plain Language of Condition

4

Prohibits

Only

the

Further Expansion

of the

Woodland Landfill, Not the Development of a Waste Transfer Facility.

As

with

Condition

2,

the meaning of Condition

4

must be

determined by

construing its

language.

Garner,

805

N.E.2d at

623.

This

language

is

the best

indicator of the intent

of the

drafter, Kane County.

Bonutti, 338 IIl.App.3d at 341.

Kane

County

drafted Condition

4 on the

basis of the statement

contained in

the July

8

letter that WMII would agree, upon final siting approval and permitting,

to no further expansions

of the Woodland landfill.

Thus,

Condition 4 plainly provides that the Woodland landfill “shall

not

be

expanded

further.”

Condition

4

does

not

provide that

any

other development

at

the

property is prohibited, or that WMII is prohibited from any

otheruse at the property.

The Village

argues

that

Condition

4

prohibits

development of a

waste

transfer station

because an “expansion” includes an extension ofa nonconforming use or an increase in intensity.

(Village Response at

5-6.)

An expansion may involve an increase in intensity (i.e. traffic), but it

does not include a fundamental change in the use or thing expanded.

As the Village’s argument

1

The fact that Condition

2 does not mandate the development ofa passive recreation park for the

entire Woodland property does not mean that WMII will not implement an end use for the closed

landfill in

accordance with

the

siting application and

applicable

Illinois

regulations.

As

stated

previously, WMII

will take those

steps

necessary to

obtain

Kane

County

approval

and then to

implement

an

end use for the

closed landfill.

(WMII’s Response in

Opposition

to

Village of

South

Elgin’s

Motion

for

Summary

Judgment at

8-9.)

This

end

use

does

not

preclude

the

development of a waste

transfer facility

on

the

8.9

acre parcel

on

the southern

portion of the

property.

390900.1

3

---

is

predicated

on

such

a

change,

it

distorts

the

plain

meaning

of the

term

“expansion.”

To

“expand”

means to “make greater in size,

bulk, scope,

etc.”

or to

“enlarge upon.”

Webster’s New

World Dictionary

(Third College

Edition,

1991).

It presumes

a use or “thing” to

be

expanded,

and does not include a change in the nature or type of the subject use.

Thus,

to

expand a use

is

not

to

change

its

nature

or essence,

but

to

increase or enlarge

it.

If the nature of the use

is

changed, the use has not been expanded, but transformed ormetamorphosed.

Condition

4

prohibits only

further expansions of the landfill.

It

does not prohibit other

uses or new development on the property.

The cases

cited by

the Village construed “expansion”

to

include an increase

in the intensity of use, but

the nature ofthat use remained the

same.

In

Triem Steel & Processing and Continental Waste Industries, the increase in intensity of use for a

waste transfer facility was deemed to be an expansion.

This conclusion was reasonable because

the nature ofthe use

-

a waste transfer facility

-

remained the

same.

In each instance,

it was the

waste

transfer

activity

that

experienced the

increase

in

intensity,

and

thus

it

was

the

waste

transfer activity that was expanded.

But the introduction ofa new use

or development at those

sites

would

not have

constituted an

“expansion” of the waste transfer facility.

By definition,

a

new use is not the expansion ofan existing, different use.

There

is

no

question that

an increase

in the

intensity of use of a waste

transfer facility

may constitute an

“expansion” ofthat facility.

There

is

also no

question that an increase

in the

size of a

waste

footprint

constitutes

an

expansion of a

landfill.

But

it cannot be

said that

the

development ofa waste transfer station constitutes an expansion ofa landfill.

It is the increase or

enlargement of the

existing

landfill use,

not the

development of an

entirely different

use,

that

constitutes an expansion ofthe landfill.

To

claim otherwise would

subvert the ordinary meaning of an

“expansion” and make it

synonymous with “development.”

If “increase in intensity ofuse”

is the standard, then any new

390900.1

4

---

development

that

would

continue

or

enhance

the

amount of traffic

or

use

at the

site

would

constitute an

“expansion”

of the

Woodland landfill.

To

give just

two

examples,

a proposal

to

develop a

multi-family residential unit or a

hospital would be

an

“expansion”

of the Woodland

landfill, because there would be

continued use and increased traffic

at the property.

Of course,

such a result

is

absurd and

was not intended

by

the

drafters of Condition

4•2

The expansion

prohibited by

the plain

language of Condition

4

is

the expansion of the Woodland

landfill, not

the development ofa waste transfer station.

In its

July

8

letter,

WIvilI

agreed that,

in the

event siting approval and

an

IEPA permit

were issued

for the expansion ofthe Woodland landfill, it would

not further expand the landfill.

The

willingness to

agree

to

this

condition

was predicated on

final regulatory

approval

for the

expansion ofthe Woodland landfill.

There was no intent or agreement that the condition would

prohibit the developmentofa waste transfer facility.

Neither WMII nor the Village had any such

understanding.

(Price Tr.

at

19-24; Rolando Tr. at 38-41,

59-60.)

The July

8 letter was the basis

for Condition 4.

Had Kane County so intended, it could have included a condition stating that no

waste transfer stations could be developed on the property or that no new development would be

allowed.

The

Kane

County

Board

did

not

do

so,

and

this

Board

may

not

include

such

a

proscription

when

there

is

no

basis

for it

in

the

legislative

intent

or the

plain

language

of

Condition 4.

2

This

is

a principal reason the discussion ofthe term “expansion”

in Village of South

Elgin v.

Waste Management of Illinois, Inc., No. 2-03-0174, slip op. at

17-18 (2d Dist.

May 28, 2004) is

incomplete

and

should

not

be

followed here.

In

that

opinion, the Appellate

Court

stated that

since the transfer facility would

service over twice the number oftrucks

using the landfill, this

would fall within the common

meaning of “expansion.”

Slip op.

at

17.

However, the increased

traffic of a new use does not constitute an

expansion of a prior distinct use.

The new use may

create an increased intensity

over and

above the prior use, but such increased intensity may not

properly

or

accurately

be

characterized

as

an

“expansion”

of the

prior

use.

The

common

meaning of the language of Condition

4

is that

no further expansions of the Woodland landfill

are allowed.

Nothing in Condition 4 even suggests that any increased traffic as a result of a new

use was intended to be considered an

“expansion” ofthe old use.

390900.1

5

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III.

Conclusion.

For all ofthe foregoing reasons, Waste Management OfIllinois,

Inc. respectfully requests

that this Board grant Waste Management Of Illinois, Inc.’s Motion for Summary Judgment, deny

the Village of South

Elgin’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,

WAç~STEMANAGEMENT OF ILLINOIS, INC.

By:

~

/ ~

One ofIts

ttomeys

390900.1

6

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PROOF OF SERVICE

Victoria L.

Kennedy, a non-attorney, on oath states that she served the foregoing

WASTE MANAGEMENT OF ILLINOIS, INC.’S REPLY TO VILLAGE RESPONSE TO

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

15 day ofJune, 2004:

Mr. Derke J. Price

ANCEL, GLINK, DIAMOND, BUSH,

DICANNI

&

ROLEK, P.C.

140 South Dearborn Street, Sixth Floor

Chicago, Illinois

60603

Victoria L.

Kenne

391313

2