2

BACKGROUND

 

 

Respondent operates a permitted landfill located at 1501 Ashley Road in Morris, Grundy

County. The approximate 119-acre site consists of two parcels, Parcel A and Parcel B. On

May 1, 1997, complainant filed an initial six-count complaint alleging that respondent violated

various sections of the Act (415 ILCS 5/1

et seq

. (2000)

amended by

P.A. 92-0574, eff. June 26,

2002) and the Board’s landfill regulations (35 Ill. Adm. Code 807). Specifically the complaint

included allegations that the respondent allowed uncovered refuse, leachate seeps, and landscape

waste at the landfill. On April 3, 1998, complainant filed an amended complaint adding counts

VII through X. These counts relate to the depositing of excess waste in Parcel B at elevations

above the permitted height. On November 24, 1999, a second amended complaint was filed by

complainant adding counts XI through XXII. These additional counts include further allegations

that the improper handling of asbestos and improper disposal of waste tires violated the Act and

Board’s regulations. Counts XI through XXII also include allegations that several permit

provisions were violated.

 

 

On July 31, 2000, complainant filed a partial motion for summary judgment (concerning

counts V and XII) and on October 30, 2000, respondent filed a cross-motion for summary

judgment. On April 5, 2001, the Board entered an order granting complainants motion for

summary judgment on count V, but denying both motions for summary judgment on count XII

and directing the parties to hearing on count XII and the issue of penalties for count V. People v.

Community Landfill Company, Inc., PCB 97-193 (Apr. 5, 2001). On July 26, 2001, the Board

granted a motion to reconsider its April 5, 2001 order. In the order of July 26, 2001, the Board

denied complainants motion for summary judgment on count XII and thus granted respondent’s

motion.

See

, People v. Community Landfill Company, Inc., PCB 97-193 (July 26, 2001) and

People v. Community Landfill Company, Inc., PCB 97-193 (Aug. 23, 2001).

 

As a result of the Board’s prior orders, two counts of the 22 counts at issue in this

proceeding have been addressed. The partial motion for summary judgment and the cross-

motion for summary judgment pending before the Board concern the remaining 20 counts of the

complaint.

 

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

 

Summary judgment is appropriate when the pleadings, depositions, admissions on file,

and affidavits disclose that there is no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,

693 N.E.2d 358, 370 (1998). In ruling on a motion for summary judgment, the Board “must

consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the

opposing party.”

Id

. Summary judgment “is a drastic means of disposing of litigation,” and

therefore it should be granted only when the movant’s right to the relief “is clear and free from

doubt.”

Id

, citing Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986). However, a

party opposing a motion for summary judgment may not rest on its pleadings, but must “present

a factual basis which would arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill.

App. 3d 213, 219, 639 N.E.2d 994, 999 (2d Dist. 1994).

 

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3

In this case both parties have asked that the Board grant summary judgment. Upon

reviewing the pleadings and the record in this matter, the Board agrees that there are no issues of

material fact and judgment may be granted as a matter of law on some of the counts. Therefore,

the Board finds that summary judgment is appropriate as to those counts. The remaining counts

have material issues of fact and should proceed to hearing. The Board will discuss each of the

counts separately below.

 

FINDINGS OF FACT

 

 

The Illinois Environmental Protection Agency (Agency) conducted several inspections of

the landfill operated by respondent. Inspections took place on April 7, 1994, March 22, 1995,

May 22, 1995, March 5, 1997, July 28, 1998, November 19, 1998, March 31, 1999, May 11,

1999, and July 20, 1999. Comp. at 4. Agency employees, Warren Weritz and Tina Kovasznay,

conducted the inspections.

See

C.Mot.S.J. at Exh. P, pp. 1-2 and Exh. N, pp. 1-4. During those

inspections, Mr. Weritz and Ms. Kovasznay recorded several observations that led to the

allegations in the complaint.

 

MOTION TO STRIKE

 

 

Respondent seeks to strike paragraphs 9, 11, 13, 14, and 18 from the second affidavit of

Warren Weritz, which was attached to the complainant’s reply. Mot.Strike at 1. Respondent

argues that those paragraphs should be struck because the statements conflict with the prior

sworn testimony of Mr. Weritz. Mot.Strike at 2. Respondent points to several portions of Mr.

Weritz’s prior affidavit and the deposition taken by respondent of Mr. Weritz to support the

argument that the paragraphs conflict with prior statements or the statements were not based on

personal knowledge.

 

 

Complainant argues that the affidavit should not be struck as the points made in the

second affidavit are further clarification of Mr. Weritz’s prior affidavit and the deposition.

R.Mot.Strike at 3. Complainant then points to each of the paragraphs and argues that the

statements are based on Mr. Weritz’s personal knowledge and are consistent with prior

statements.

 

 

The Board denies the motion to strike the second affidavit. The statements made in the

second affidavit, when read with the other statements from Mr. Weritz, demonstrate that in

several instances questions of material fact still exist. Therefore, the Board will consider the

second affidavit in this proceeding.

 

STATUTORY AND REGULATORY BACKGROUND

 

The complaint alleges violations of several sections of the Act, the Board’s procedural

rules, and permit conditions. The specific sections of the Act are Sections 3.305, 9.1, 21, 21.1,

22.22, 12, and 55(b-1). 415 ILCS 5/3.305, 9.1, 21, 21.1, 22.22, 12, and 55(b-1) (2000)

amended

by

P.A. 92-0574, eff. June 26, 2002). The provisions of the Board’s rules are 35 Ill. Adm. Code

807.306, 807.313, 807.314, 807.601, 807.603, and 807.623.

 

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4

Section 3.305 of the Act defines “open dumping” as” the consolidation of refuse from

one or more sources at a disposal site that does not fulfill the requirements of a sanitary landfill.”

(415 ILCS 5/3.305 (2000)

amended by

P.A. 92-0574, eff. June 26, 2002).

 

Section 9.1(d)(1) of the Act provides that no person shall:

 

(1) violate any provisions of Sections 111, 112, 165 or 173 of the Clean Air

Act, as now or hereafter amended, or federal regulations adopted pursuant

thereto; or

 

Section 12(a) of the Act provides that no person shall:

 

Cause or threaten or allow the discharge of any contaminants into the

environment in any State so as to cause or tend to cause water pollution in Illinois,

either alone or in combination with matter from other sources, or so as to violate

regulations or standards adopted by the Pollution Control Board under this Act.

 

Section 21(d) and (o) of the Act provide, in pertinent part that no person shall:

 

(d) Conduct any waste-storage, waste-treatment, or waste-disposal operation:

 

(2) in violation of any regulations or standards adopted by the Board

under this Act;

* * *

 

(o) Conduct a sanitary landfill operation which is required to have a permit

under subsection (d) of this Section, in a manner which results in any of

the following conditions:

 

(1) refuse in standing or flowing waters;

 

(2) leachate flows entering waters of the State;

 

(3) leachate flows exiting the landfill confines (as determined by the

boundaries established for the landfill by a permit issued by the

Agency);

* * *

 

(5) uncovered refuse remaining from any previous operating day or at

the conclusion of any operating day, unless authorized by permit;

 

* * *

 

(12) failure to collect and contain litter from the site by the end of each

operating day.

 

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5

Section 21.1(a) of the Act provides:

 

Except as provided in subsection (a.5), no person other than the State of Illinois,

its agencies and institutions, or a unit of local government shall conduct any waste

disposal operation on or after March 1, 1985, which requires a permit under

subsection (d) of Section 21 of this Act, unless such person has posted with the

Agency a performance bond or other security for the purpose of insuring closure

of the site and post-closure care in accordance with this Act and regulations

adopted thereunder.

 

Section 22.22(c) of the Act provides:

 

If remediation of real property contaminated by hazardous substances or

petroleum products cannot be reasonably accomplished without entering onto

land adjoining the site from which those substances were released, and if the

owner of the adjoining land refuses to permit entry onto the adjoining land for the

purpose of effecting remediation, then the owner or operator of the site may bring

an action to compel the owner of the adjoining land to permit immediate entry for

purposes relating to the remediation of the site, the adjoining land, and any other

real property that may be contaminated with the hazardous substances or

petroleum products. The court shall prescribe the conditions of the entry and shall

determine the amount of damages, if any, to be paid to the owner of the adjoining

land as compensation for the entry. The court may require the owner or operator

who is seeking entry to give bond to the owner of the adjoining land to secure

performance and payment.

 

Section 55(b-1) of the Act provides:

 

(b-1) Beginning January 1, 1995, no person shall knowingly mix any used or

waste tire, either whole or cut, with municipal waste, and no owner or

operator of a sanitary landfill shall accept any used or waste tire for final

disposal . . . .

 

Section 807.306 provides that “all litter shall be collected from the sanitary landfill site

by the end of each working day and either placed in the fill and compacted and covered that day,

or stored in a covered container.” 35 Ill. Adm. Code 807.306.

 

Section 807.313 provides:

 

No person shall cause or allow operation of a sanitary landfill so as to cause or

threaten or allow the discharge of any contaminants into the environment in any

State so as to cause or tend to cause water pollution in Illinois, either alone or in

combination with matter from other sources, or so as to violate regulations or

standards adopted by the Pollution Control Board under the Act. 35 Ill. Adm.

Code 807.313.

 

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6

Section 807.314(e) provides that no person shall cause or allow the development or

operation of a landfill that does not provide “adequate measures to monitor and control

leachate.” 35 Ill. Adm. Code 807.314(e).

 

Section 807.601(a) provides:

 

The financial assurance requirement does not apply to the State of Illinois, its

agencies and institutions, or to any unit of local government; provided, however,

that any other persons who conduct such a waste disposal operation on a site

which may be owned or operated by such a government entity must provide

financial assurance for closure and post-closure care of the site. 35 Ill. Adm.

Code 807.601.

 

Section 807.603(b)(1) provides that the “operator must increase the total amount of

financial assurance so as to equal the current cost estimate within 90 days after” an increase in

the current cost estimate. 35 Ill. Adm. Code 807.603(b)(1).

 

Section 807.623(a) provides that “the operator must revise the current cost estimate at

least once every two years. The revised current cost estimate must be filed on or before the

second anniversary of the filing or last revision of the current cost estimate.” 35 Ill. Adm. Code

807.623(a).

 

DISCUSSION

 

The following discussion will delineate the allegation in each of the remaining twenty

counts. The Board will then summarize the arguments of the parties. Finally for each count the

Board will discuss the issue and make a finding.

 

Count I

 

Count I of the complaint

2

argues that respondent failed to adequately manage refuse and

litter at the landfill site in violation of Sections 21(d)(2), 21(o)(1), (5) and (12) of the Act (415

ILCS 5/21

amended by

P.A. 92-0574, eff. June 26, 2002)) and 35 Ill. Adm. Code 807.306.

Comp. at 6. The complaint asserts that on three separate inspections litter was observed in the

perimeter ditch and at least once in the retention pond. Comp. at 4. Also on one occasion

leachate seeps had exposed previously covered refuse, according to the allegations in the

complaint.

Id

. On two occasions the Agency inspector alleged that there was uncovered refuse

from the day before and on the other two occasions the inspector maintained that the landfill was

accepting waste and there was uncovered refuse, including bags of waste material containing

asbestos and blowing litter. Comp. at 4-5.

 

Complainant’s Arguments

 

2

All references to the complaint herein are to the second amended complaint filed on November

24, 1999 and will be cited as “Comp. at __” in this order.

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7

In support of the motion for summary judgment, complainant filed the affidavits of Mr.

Weritz and Ms. Kovasznay. Mr. Weritz indicated that on his inspection of April 7, 1994, he

observed litter in the perimeter ditch which had standing water and on the southwest slope.

C.Mot.S.J. at Exh. P, p. 2. Mr. Weritz also states in the affidavit that the respondent’s site

manager “stated to me that litter was not being collected at the end of each working day.”

Id

.

Mr. Weritz also indicated that on his March 22, 1995, and May 22, 1995, inspections he again

observed litter in the perimeter ditch and in the drainage ditch and retention pond.

Id

.

 

 

On May 11, 1999, Ms. Kovasznay inspected the site and observed uncovered bags “of

asbestos containing materials” at the site. C.Mot.S.J. at Exh. N, p. 3. Ms. Kovasznay also states

in the affidavit that the respondent’s site manager had informed her “that the last date

Respondent had received asbestos was on May 7, 1999.” C.Mot.S.J. at Exh. N, p. 4.

 

 

Complainant maintains that the inspectors’ statements indicate that refuse was uncovered

from the day prior to inspections and that the uncovered refuse led to the observance of litter on

the day of inspection. C.Reply at 15. Complainant argues that the weather conditions on the

days of inspection and the location of the litter support this conclusion.

Id

. The complainants

point to the second affidavit

3

of Mr. Weritz for support.

 

Respondent’s Argument

 

 

Respondent argues that the provisions of the Act the complaint alleges respondent

violated require that litter be controlled by the end of each operating day and refuse be covered.

R.Mot.S.J. at 18. Respondent asserts that neither Ms. Kovasznay nor Mr. Weritz were present at

the end of the operating day and Mr. Weritz admitted in his deposition that he did not know

whether respondent took steps at the end of the day to correct the alleged litter violation.

Id

.

Therefore, respondent asserts that the observations of the inspectors cannot be used to sustain the

alleged violation.

Id

. Furthermore, the affidavit of respondent’s site manager, James Pelnarsh,

takes issue with Mr. Weritz statements concerning what Mr. Pelnarsh allegedly told Mr. Weritz.

R.Mot.S.J. at 18, citing Exh. 3. Mr. Pelnarsh states that he never advised Mr. Weritz that

respondent was not picking up litter at the end of the operating day.

Id

.

 

Respondent further argues that although Section 21(o)(1) of the Act prohibits refuse in

standing or flowing water, a reasonable interpretation would allow the respondent the

opportunity to allow collection of litter at the end of the operating day. R.Mot.S.J. at 19. For

these reasons, respondent argues that a question of fact exists and summary judgment should be

denied.

Id

.

 

Board Discussion

 

 

The Board finds that a genuine issue of fact remains concerning respondent’s litter

control at the site. The two affidavits of Mr. Weritz and the conflicting statements by Mr.

Pelnarsh establish questions of fact. Mr. Weritz in his second affidavit expanded on prior

 

3

The second affidavit of Mr. Weritz is cited in the complainant’s response as Exhibit Q;

however, the exhibit as attached to the response is titled Exhibit P.

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8

statements in support of the alleged violations here; however, as established in the motion to

strike by respondent, some of those statements may conflict with deposition testimony.

Therefore, count I should be fully heard at hearing with examination and cross-examination of

the witnesses. The Board denies complainant’s motion for summary judgment on count I and

sends the matter to hearing.

 

Count II

 

 

Count II of the complaint alleges that respondent caused or allowed violations of Sections

21(d)(2) and 21(o)(2) and (3) of the Act (415 ILCS 5/21(d)(2) and 21(o)(2) and (3) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and 35 Ill. Adm. Code 807.314(e) of the Board

regulations, by allowing leachate to exit the landfill boundaries and enter waters of the State.

Comp. at 8. Specifically the complaint alleges that during the inspections on April 7, 1994,

March 22, 1995, and May 22, 1995, leachate seeps were observed at the site and in the north

perimeter ditch. Comp. at 7. The north perimeter ditch eventually drains into the Illinois River.

Id

.

 

Complainant’s Arguments

 

 

Complainant relies on the observations and affidavit concerning those observations of

Mr. Weritz to support the motion for summary judgment. Specifically, Mr. Weritz states in the

affidavit that on April 7, 1994, he observed “five leachate seeps along the northwest perimeter of

Parcel B of the landfill.” C.Mot.S.J. at Exh. P, pg. 3. He further indicates that on March 22,

1995, he observed one leachate seep at the northwest perimeter of the landfill and again on

May 22, 1995, a leachate seep along the north slope of Parcel B.

Id

. Mr. Weritz also observed

leachate in the north perimeter ditch during the May 22, 1995 inspection.

Id

.

 

 

Complainant argues that the liquid observed by Mr. Weritz is leachate within the

meaning of the word. C.Reply at 5. Complainant asserts that “leachate is a liquid that has been

in direct contact with a solid waste” and points to People v. ESG Watts, PCB 96-107 (Feb. 5,

1998) to support the position.

Id

. Complainant indicates that Mr. Weritz saw “red liquid seeping

out of the sidewalls of the landfill, and then flowing into a ditch.” C.Reply at 5, citing C.Reply

at Exh. P. Complainant maintains that this observation indicated that the material, percolating

through the landfill and out the sidewalls, must have come into contact with refuse buried there.

C.Reply at 6.

 

Respondent’s Arguments

 

 

Respondent argues that summary judgment should be granted to respondent on this

count. R.Mot.S.J. at 6. Respondent asserts that Mr. Weritz defines leachate as liquid coming

into contact with garbage and Mr. Weritz based his determination that leachate was not being

controlled on visual observation. R.Mot.S.J. at 6, citing Exh. 1. Respondent maintains that Mr.

Weritz did not take any samples of the material he believed to be leachate nor did he determine

that the material he saw in the perimeter ditch was contaminants.

Id

. Finally, Respondent argues

that Mr. Weritz did not see any of the reddish liquid leave the site of the landfill. R.Mot.S.J. at 7,

citing Exh. 1.

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9

 

 

Respondent maintains that in contrast, Mike McDermont filed an affidavit indicating that

it is impossible to determine by visual inspection whether the reddish-brown liquid observed by

Mr. Weritz is leachate. R.Mot.S.J. at 7, citing Exh. 2, pp. 8-9. Respondent argues that the

affidavits of Mr. McDermont and Mr. Pelnarsh, respondent’s site manager, establish that there

are iron deposits that would create reddish or brownish colored discharges in direct proximity to

the landfill. R.Mot.S.J. at 8, citing Exh. 2 and 3. Respondent asserts that the only

uncontradicted evidence in this case is that Mr. Weritz did not observe any materials from the

landfill entering the perimeter ditch, he did not determine that the perimeter ditch caused or

threatened water pollution, and the materials he observed were from iron deposits, not leachate.

R.Mot.S.J. at 8.

 

Board Discussion

 

 

The Board finds that there are genuine issues of material fact and summary judgment is

not appropriate on count II. The affidavits provided concerning the alleged violations in count II

indicate a disagreement over whether the material in the north perimeter ditch was leachate and

whether the material migrated offsite. Because of the conflicting statements in the affidavits

count II should be fully heard at hearing with examination and cross-examination of the

witnesses. Therefore the motions for summary judgment are denied and this count shall proceed

to hearing.

 

Count III

 

 

Count III of the complaint alleges that respondent was land filling landscape waste in

violation of Section 22.22(c) of the Act (415 ILCS 5/22.22(c) (2000)

amended by

P.A. 92-0574,

eff. June 26, 2002). Comp. at 10. The complaint alleges that during inspections conducted on

August 18, 1993 and April 7, 1994, the Agency inspector observed landscape waste deposited in

the landfill area.

 

Complainant’s Arguments

 

Complainant provided an affidavit by Mr. Weritz in which he states that on his inspection

on August 18, 1993, he observed processed/composted landscape waste in the active area of the

landfill. C.Mot.S.J. at 34, citing, Exh. P, p. 3. Furthermore during the inspection of April 7,

1994, he observed landscape waste including tree branches and brush in the active area of Parcel

B.

Id

.

 

Respondent’s Argument

 

 

The respondent concedes that there is no genuine issue of fact regarding this alleged

violation and summary judgment should be granted to the complainant on the issue of liability

only.

 

Board Discussion

 

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10

The Board finds there is no genuine issue of material fact and grants summary judgment

on count III to the complainant. The Board finds that respondent violated Section 22.22(c) of the

Act (415 ILCS 5/22.22(c) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) on August 18,

1993, and April 7, 1994.

 

Count IV

 

Count IV of the complaint alleges that the respondent failed to provide adequate financial

assurance in violation of Sections 21.1 and 21(d)(2) of the Act (415 ILCS 5/21.1 and 21(d)(2)

(2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and 35 Ill. Adm. Code 807.601(a) and

807.603(b)(1) of the Board’s rules. Comp. at 13. More specifically, the complaint alleges that

the respondent’s supplemental permit dated April 20, 1993 required that financial assurance in

the amount of $1,342,500 be maintained and respondent failed to increase the total amount of

financial assurance within 90 days of the permit issuance.

Id

. The complaint further alleges that

respondent provided a performance bond on June 20, 1996.

Id

.

 

Complainant’s Arguments

 

 

Complainant argues that special condition three of supplemental permit number 1993-

066-SP requires financial assurance in the amount of $1,342,500 be maintained by respondent.

C.Mot.S.J. at 12, citing Exh. J. Special condition four of that same permit required that financial

assurance documentation be filed with the Agency within 90 days of the date of the permit

issuance.

Id

. Blake Harris, a financial assurance reviewer with the Agency, indicates that such

documentation was not filed until June 20, 1996. C.Mot.S.J. at Exh. K p. 2. Thus, the

complainant argues there is no genuine issue of material fact and summary judgment should be

entered for complainant.

 

Respondent’s Argument

 

The respondent concedes that respondent failed to increase financial assurance from July

19, 1993 until June 20, 1996. However, respondent asserts that “it is not appropriate for this

single act to result in multiple violations.” R.Mot.S.J. at 24. Respondent also asserts that the

Board has previously held that attempting to impose two penalties for the same offense is

improper and cites to County of DuPage v. E & E Hauling, Inc., AC 88-76, 88-77 (Sept. 13,

1989), (consld.).

 

Board Discussion

 

 

The Board finds that there are no genuine issues of material fact regarding the allegation

in count IV. Therefore summary judgment is appropriate and the Board grants summary

judgment to the complainant on count IV. Furthermore, the Board finds the respondent’s

argument that a single act cannot result in multiple violations completely devoid of merit. The

Board routinely finds that a single act can result in the violation of several provisions of the Act

and Board regulations in cases both decided by the Board and in cases which are presented to the

Board with stipulated settlements.

See

People v. ESG Watts, Inc., PCB 96-237 (Feb. 19, 1998);

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11

People v. ESG Watts, Inc., PCB 96-107 (Feb. 5, 1998), People v. Louis Berkman, PCB 97-101

(Nov. 2, 2000).

 

E & E Hauling is easily distinguishable from this case. In E & E Hauling, the Agency

argued that refuse at a working landfill on the active face was both “uncovered refuse” from the

previous operating day and litter. E & E Hauling

slip. op.

at 6. The Board found that litter was a

“subspecies” of refuse and the Agency was attempting to impose two separate penalties for the

same offense, where the two violations were mutually exclusive.

Id

. In this case, the failure to

maintain adequate financial assurance is specifically a violation of multiple sections of the Act

and the Board’s regulations. Therefore, the Board finds that respondent violated Sections 21.1

and 21(d)(2) of the Act (415 ILCS 5/21.1 and 21(d)(2) (2000)

amended by

P.A. 92-0574, eff.

June 26, 2002) and 35 Ill. Adm. Code 807.601(a) and 807.603(b)(1) of the Board’s rules.

 

 

The Board notes that the complainant provided the Board with substantial factual details

concerning the alleged economic benefit achieved by respondent. Respondent takes issue with

those facts and reserves the right to address those facts when the Board determines the penalty.

The Board will not at this time rule on the issue of penalty. As the Board indicated previously,

the Board looks to the factors in Section 42(h) of the Act (415 ILCS 5/42 (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) in assessing penalties and each of those factors require factual

determinations. People v. Community Landfill Company, Inc., PCB 97-193,

slip. op.

at 10 (Apr.

5, 2001). The Board found that “the factors are not appropriately discussed in an order on cross

motions for summary judgment.” People v. Community Landfill Company, Inc., PCB 97-193,

slip. op.

at 10 (Apr. 5, 2001). The parties may address the economic benefits gained by

respondent as well as the remaining factors under Section 42(h) of the Act (415 ILCS 5/42

(2000)

amended by

P.A. 92-0574, eff. June 26, 2002) at hearing and in final briefs.

 

Count VI

 

Count VI of the complaint alleges that respondent caused or allowed water pollution in

violation of Section 12(a) of the Act (415 ILCS 5/12(a) (2000)

amended by

P.A. 92-0574, eff.

June 26, 2002) and 35 Ill. Adm. Code 807.313. Comp. at 18. The complaint alleges that during

an inspection on May 22, 1995, an inspector observed leachate in the north perimeter ditch

which eventually drains into the Illinois River. Comp. at 16.

 

Complainant’s Arguments

 

 

 

Complainant argues that the Section 12(a) of the Act (415 ILCS 5/12(a) (2000)

amended

by

P.A. 92-0574, eff. June 26, 2002) prohibits the discharge of contaminants into the waters of

the State and 35 Ill. Adm. Code 807.313 also prohibits the discharge of contaminants into the

waters of the State. C.Mot.S.J. at 35. Mr. Weritz, in his affidavit, states that during his May 22,

1995 inspection, he observed leachate from the landfill in the north perimeter ditch. C.Mot.S.J.

at Exh. P, p. 2. The north perimeter ditch drains into the Illinois River.

Id

. Therefore, the

complainant argues respondent violated the provision of Section 12(a) of the Act (415 ILCS

5/12(a) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and 35 Ill. Adm. Cod 807.313.

 

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12

Respondent’s Arguments

 

 

Respondent argues that summary judgment should be granted to respondent on this

count. R.Mot.S.J. at 6. Respondent asserts that Mr. Weritz defines leachate as liquid coming

into contact with garbage and Mr. Weritz based his determination that leachate was not being

controlled on visual observation. R.Mot.S.J. at 6, citing Exh. 1. Respondent maintains that Mr.

Weritz did not take any samples of the material he believed to be leachate nor did he determine

that the materials he saw in the perimeter ditch were contaminants.

Id

. Finally, Respondent

argues that Mr. Weritz did not see any of the reddish liquid leave the site of the landfill.

R.Mot.S.J. at 7, citing Exh. 1.

 

 

In contrast, respondent maintains that Mike McDermont filed an affidavit indicating that

it is impossible to determine by visual inspection whether the reddish-brown liquid observed by

Mr. Weritz is leachate. R.Mot.S.J. at 7, citing Exh. 2, pp. 8-9. Respondent argues that the

affidavits of Mr. McDermont and Mr. Pelnarsh establish that there are iron deposits that would

create reddish or brownish colored discharges in direct proximity to the landfill. R.Mot.S.J. at 8,

citing Exh. 2 and 3. Respondent asserts that the only uncontradicted evidence in this case is that

Mr. Weritz did not observe any materials from the landfill entering the perimeter ditch, he did

not determine that the perimeter ditch caused or threatened water pollution, and the materials he

observed were from iron deposits, not leachate. R.Mot.S.J. at 8.

 

Board Discussion

 

 

The Board finds that there are genuine issues of fact remaining on count VI and therefore

the Board denies both motions for summary judgment on count VI. The affidavits provided

concerning the alleged violations in count VI indicate a disagreement over whether the material

in the north perimeter ditch was leachate and whether the material migrated offsite. Because of

the conflicting statements in the affidavits, count VI should be fully heard at hearing with

examination and cross-examination of the witnesses. Therefore the motions for summary

judgment are denied and count VI shall proceed to hearing.

 

Count VII, VIII, IX, AND X

 

 

Counts VII, VIII, IX, and X involve the same facts. Specifically, the complaint alleges

that the respondent has deposited refuse above the permitted elevations for Parcel B. Comp. at

21. In so doing, the complaint alleges that respondent has caused or allowed violation of

Sections 21(o)(9) (count VII), 21(d)(1) (count VIII and X), and 21(a) (count IX) of the Act (415

ILCS 5/21(o)(9) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002).

 

Complainant’s Arguments

 

 

The complainant asserts that in 1989 respondent was issued a permit that allowed the

maximum level of Parcel B to be 580 feet above mean sea level. C.Mot.S.J. at 5, citing Exh. F.

Complainant maintains that the Agency never issued a modification to that supplemental permit

that would allow for a different elevation.

Id

. Furthermore, complainants maintain that

respondent has submitted documents to the Agency that provide “undisputed evidence” that the

---

 

13

elevation of Parcel B is above 580 feet. C.Mot.S.J. at 6. Because the Agency never issued a

permit for the elevation to exceed 580 feet, the complainant argues respondent deposited waste

in an unpermitted portion of a landfill and was conducting a waste operation without a permit in

violation of Sections 21(o)(9) and 21(d)(1) of the Act. C.Mot.S.J. at 9. Complainant maintains

that the facts also lead to the conclusion that respondent caused or allowed open dumping and

failed to comply with respondent’s permit in violation of Sections 21(a) and 21(d)(1) of the Act.

Id

.

 

Respondent’s Arguments

 

 

Respondent concedes that waste has been deposited in Parcel B above the permitted

levels although the extent of the overheight is still at issue. R.Mot.S.J. at 23. However,

respondent argues that complainant is attempting to charge multiple violations for the same act

and that is inappropriate.

Id

. More specifically, respondent asserts that the single act or series of

acts does not constitute open dumping. R.Mot.S.J. at 24. Respondent maintains that this is a

sanitary landfill site and the fact that some waste was placed above the permitted level does not

constitute open dumping. Finally, respondent also argues that this is a permitted facility and

placement of waste above the permitted height does not constitute waste disposal without a

permit.

 

Board Discussion

 

 

The Board finds that there are no genuine issues of material fact regarding the allegation

in counts VII, VIII, IX, and X. Therefore summary judgment is appropriate and the Board grants

summary judgment to the complainant. For the reason discussed above on count IV (

see infra

 

@), the Board is not convinced by the respondent’s argument that a single act cannot be used to

charge multiple violations of the Act and the Board’s regulations. Furthermore the Board does

find that open dumping and waste disposal without a permit occurred at the site. The parties

agree that waste and cover materials have been placed in the landfill above the elevation

included in landfill permit (

see

R.Mot.S.J. at 23 and C.Mot.S.J. at 6). Depositing waste in that

area meets the definition of open dumping (

see

415 ILCS 5/3.305 (2000)

amended by

P.A. 92-

0574, eff. June 26, 2002). Therefore, the Board finds that respondent violated Sections 21(o)(9)

count VII), 21(d)(1) (count VIII and X), and 21(a) (count IX) of the Act (415 ILCS 5/21(o)(9)

(2000)

amended by

P.A. 92-0574, eff. June 26, 2002).

 

Count XI

 

Based on a May 11, 1999, inspection, the complaint alleges that respondent failed to

properly handle asbestos containing materials in violation of Section 9.1(d) of the Act (415 ILCS

5/9.1(d) (2000)) and 40 C.F.R. 61.154. Comp. at 31.

 

Complainant’s Arguments

 

The complainant argues that the Act requires that asbestos containing material either be

covered within 24 hours of placement at a landfill or that there be no visible emissions.

C.Mot.S.J. at 37. Ms. Kovasznay states in her affidavit that on May 11, 1999, she observed

---

 

14

“uncovered bags of asbestos containing waste material on Parcel A.” C.Mot.S.J. at Exh. N, p. 3.

Ms. Kovasznay further states that respondent’s site manager told her that there had been no

asbestos containing waste materials deposited at the landfill since May 7, 1999. C.Mot.S.J. at

Exh. N, p. 4. Complainant argues that based on this affidavit there is no genuine issue of fact

and summary judgment should be granted to complainant.

 

Respondent’s Arguments

 

 

Respondent argues that summary judgment should be granted to respondent on this

count. R.Mot.S.J. at 9. Respondent asserts that at her deposition, Ms. Kovasznay indicated that

there is no way to look at something and tell it is asbestos. R.Mot.S.J. at 9, citing Exh. 4, pp. 46-

47. Respondent argues that Ms. Kovasznay did not perform any testing and cannot say whether

anyone from the Agency did test of the materials.

Id

. Respondent argues that Ms. Kovasznay

“admitted” that the bags were not marked “asbestos” and based her allegation on what the

material looked like. R.Mot.S.J. at 9, citing Exh. 4, pp. 33-34.

 

Board Discussion

 

 

The Board finds that there is no genuine issue of material fact and summary judgment is

appropriate. The Board grants respondent’s motion for summary judgment. A review of the

deposition testimony and affidavits of Ms. Kovasznay establish that she based her conclusions on

merely observing materials she thought might contain asbestos. No testing was done on the

materials and the materials were not marked as asbestos. The Board finds that this is not

sufficient to support a finding of violation on this count. Therefore summary judgment is

granted to respondent.

 

Count XIII

 

 

The complaint alleges that on July 28, 1998, respondent was mixing waste tires with

municipal waste in violation of Section 55(b-1) of the Act (415 ILCS 5/55(b-1) (2000)

amended

by

P.A. 92-0574, eff. June 26, 2002).

 

Complainant’s Arguments

 

 

Complainant relies on the observations of Mr. Weritz during his inspection of July 28,

1998, to support the motion for summary judgment. C.Mot.S.J. at 39. Mr. Weritz indicates that

he observed that respondent had mixed two waste tires with municipal waste in the active area of

Parcel A. C.Mot.S.J. at Exh. P, pp. 3.

 

Respondent’s Arguments

 

 

Respondent concedes there is not genuine issue of material fact and respondent cannot

refute the facts. R.Mot.S.J. at 26-27.

 

Board Discussion

 

---

 

15

The Board finds that there is no genuine issue of material fact and grants summary

judgment to complainant on count XIII. Therefore, the Board finds that on July 28, 1998, the

respondent violated Section 55(b-1) of the Act (415 ILCS 5/55(b-1) (2000)

amended by

P.A. 92-

0574, eff. June 26, 2002) by mixing two waste tires with municipal waste.

 

Count XIV

 

 

The complaint alleges that respondent failed to use a temporary fence to prevent blowing

litter on March 31, 1999. Comp. at 39-40. The complaint alleges that the failure to use the fence

resulted in violations of Section 21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and special condition 13 of permit number 1989-005-SP.

 

Complainant’s Arguments

 

In support of the motion for summary judgment, complainant relies on the affidavit of

Ms. Kovasznay and her observations in that affidavit. C.Mot.S.J. at 22. Ms. Kovasznay

inspected the site on March 31, 1999, and observed blowing litter at the site. C.Mot.S.J. at Exh.

N, p. 2. Ms. Kovasznay also observed that the respondent was not using a movable fence at the

site on that day.

Id

. Complainant asserts that there is no genuine issue of material fact and

summary judgment should be granted to complainant. C.Mot.S.J. at 23.

 

Respondent’s Arguments

 

 

Respondent concedes there is not genuine issue of material fact and respondent cannot

refute the facts. R.Mot.S.J. at 26-27.

 

Board Discussion

 

 

The Board finds that there is no genuine issue of material fact and grants summary

judgment to complainant on Count XIV. The Board finds that respondent violated Section

21(d)(1) of the Act (415 ILCS 5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002)

and special condition thirteen of permit number 1989-005-SP on March 31, 1999.

 

Count XV

 

 

The complaint alleges that respondent violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and special condition one of

permit number 1996-240-SP. Comp. at 40. Specifically, the complaint alleges that special

condition one required the respondent to provide to the Agency specific information regarding

the gas management system prior to the operation of the system and respondent failed to do so.

Comp. at 39-40.

 

Complainant’s Arguments

 

The complainant maintains that when Ms. Kovasznay performed her inspection on March

31, 1999, the gas management system was operating. C.Mot.S.J. at 25, citing Exh. N, pp. 2-3.

---

 

16

As of that date, complainant asserts the Agency had not received the information required by

special condition one.

Id

. The complainant notes that the Agency did receive the information

required on May 5, 1999, and the information was dated April 22, 1999. C.Mot.S.J. at 26, citing

Exh. N, p. 3.

 

Respondent’s Arguments

 

 

Respondent argues that there are genuine issues of material fact involved with count XV

and the count should be sent to hearing. R.Mot.S.J. at 21. Specifically, respondent argues that

Ms. Kovasznay testified in her deposition that her conclusion that the system was operating was

based on hearing what she believed were turbines running in a closed building and statements by

the site manager. R.Mot.S.J. at 19. In contrast, the affidavit of the site manager, Mr. Pelnarsh,

indicates that the system was not running. R.Mot.S.J. at 20, citing Exh. 3, p. 3. Mr. Pelnarsh

indicated in his affidavit that the owner of the system would periodically test the system and he

believes that is what was why Ms. Kovasznay heard something running on March 31, 1999.

Id

.

 

 

Respondent also argues that the issue of who is responsible for the operation of the

system is an issue of material fact. R.Mot.S.J. at 21. Respondent maintains that the respondent

does not own or operate the gas management system.

Id.

 

Board Discussion

 

 

The Board finds that there is a genuine issue of material fact as to whether the gas

management system was operating. Ms. Kovasznay’s affidavit states the system was running;

Mr. Pelnarsh’s affidavit states the system was not. Based on the conflicting affidavits the Board

finds that there is a genuine issue of material fact and will send this matter to hearing. Because

the Board finds that there is a genuine issue of material fact, the Board will not comment on the

respondent’s argument that because the respondent does not own or operate the system,

respondent is somehow not responsible for the alleged permit violation.

 

Count XVI

 

 

The complaint alleges that the respondent violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and special condition number

nine of supplemental permit 1996-240-SP. Comp. at 45. Specifically, the allegation arose from

a March 31, 1999 inspection where “erosion, ponding and cracks over one inch wide at the

facility, [and] no vegetative cover” was observed. Comp. at 44. Special condition nine of permit

number 1996-240-SP provides:

 

While the site is being developed or operated as a gas control or extraction

facility, corrective action shall be taken if erosion or ponding are observed, if

cracks greater than one inch wide have formed, if gas, odor, vegetative or vector

problems arise, or if leachate popouts or seeps are present in the areas disturbed

by construction this gas collection facility. Comp. at 44.

 

---

 

17

Complainant’s Arguments

 

 

Complainant asserts that there is no genuine issue of material fact and cites to the

affidavit of Ms. Kovasznay for support. C.Mot.S.J. at 27. Ms. Kovasznay states in her affidavit

that she observed ponding, erosion, and cracks over one inch wide. C.Mot.S.J. at Exh. N, pg. 3.

Ms. Kovasznay also stated that there was incomplete vegetative cover during her March 31, 1999

inspection and July 20, 1999 inspection.

Id

. Complainant argues that a complete and proper

reading of special condition nine makes clear that respondent was required to correct these

problems and respondent failed to do so. C.Reply at 19-20. Complainant asserts that the reading

of special condition number nine urged by respondent “flies in the face of the purpose of the

permit.” C.Reply 20. Complainant argues that summary judgment should be entered in favor of

complainant on this issue.

 

Respondent’s Arguments

 

 

Respondent asserts that summary judgment should be granted to respondent on this

count. R.Mot.S.J. at 14. Respondent argues that the sole evidence provided by complainant in

support of this count is the observations of the inspector. R.Mot.S.J. at 13. However, respondent

asserts that the gas management system was placed above ground and no areas of the landfill

were disturbed during the development of the system. R.Mot.S.J. at 14. In support of this

assertion, respondent points to the gas management acceptance report application dated April 22,

1999, and approved by permit number 1999-175-LP.

Id

. The application noted that final cover

restoration was not necessary as the area was not disturbed by the installation of the system.

Id

.

 

 

Respondent argues that the complainant is “selectively interpreting the language” of

special condition nine. R.Mot.S.J. at 14. Respondent asserts that special condition nine applies

only to penetration or disturbance of the final cover caused by the construction of the gas control

system.

Id

.

 

Board Discussion

 

 

The Board finds that there is no genuine issue of material fact concerning Count XVI.

The Board will grant the complainant’s motion for summary judgment and therefore,

respondent’s motion for summary judgment is denied. The Board is not persuaded by

respondent’s argument concerning the interpretation of special condition nine. The language of

condition nine is clear that erosion, ponding, and cracks are to be repaired “while the site is being

developed or operated as a gas control or extraction facility.” The condition does not limit the

scope of responsibility to the areas disturbed by the construction or operation of the gas

management system. Therefore, the observations of Ms. Kovasznay are sufficient to support the

allegations in the complaint. This matter shall proceed to hearing to determine the appropriate

penalty.

 

Count XVII

 

 

The complaint alleges that the respondent violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and special condition number

---

 

18

eleven of supplemental permit 1996-240-SP. Comp. at 47. Specifically, the complaint alleges

that on March 31, 1999, and July 20, 1999, respondent pumped leachate into new cells for added

moisture and did not properly dispose of the leachate at a permitted facility. Comp. at 47.

Special condition eleven of permit number 1996-240-SP provides:

 

Condensate from the gas accumulations system, and leachate pumped and

removed from the landfill shall be disposed at an IEPA permitted publicly owned

treatment works, or a commercial treatment or disposal facility. The condensate

shall be analyzed to determine if hazardous waste characteristics are present. A

written log showing the volume of liquid discharged to the treatment facility each

day by the landfill will be maintained at the landfill. This log will also show the

hazardous waste determination analytical results. Comp. at 46-47.

 

Complainant’s Arguments

 

Complainant maintains that respondent improperly disposed of leachate from the landfill

by using it to increase the moisture content of the clay. C.Mot.S.J. at 27-28. In support of the

argument, complainant relies on the affidavit of Ms. Kovasznay. Ms. Kovasznay states that

during her inspections on March 31, 1999, and July 20, 1999, the respondent’s site manager

“informed me that CLC [respondent] was placing leachate in Parcel A to increase the moisture

content of the clay.” C.Mot.S.J. at Exh. N, pg. 2.

 

Respondent’s Arguments

 

 

Respondent argues that summary judgment should be granted to respondent as the only

evidence presented by complainant is the affidavit of Ms. Kovasznay which is “totally based on

hearsay”. R.Mot.S.J. at 10. Furthermore, the respondent maintains that complainant has not

submitted any evidence that the material used to moisten clay on Parcel A came from Parcel B.

Id

. Respondent asserts that in fact the site manager has filed an affidavit indicating that he told

Ms. Kovasznay that “on the dates in question” he was pumping “stormwater that may contain

small amounts of leachate from the retention pond on the northern slope of Parcel A.”

R.Mot.S.J. at 10 and see Exh. 3, pg. 2.

 

Board Discussion

 

 

The Board finds that there are genuine issues of material fact and therefore denies both

motions for summary judgment on Count XVII. The affidavit of Ms. Kovasznay indicates that

Mr. Pelnarsh told her that he was using leachate to moisten Parcel A. However, Mr. Pelnarsh

indicated he did not tell her he was using leachate to moisten Parcel A but rather he was using

stormwater. Because of the disparity in the affidavits, the Board believes that there exists a

genuine issue of material fact. The issue can be better examined after examination and cross-

examination of the witnesses. Therefore, the motions for summary judgment are denied.

 

Count XVIII

 

---

 

19

The complaint alleges that the respondent violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and special condition number

ten of supplemental permit 1996-240-SP. Comp. at 49. Specifically, the allegation arose from a

July 20, 1999 inspection where the inspector observed that “appurtenances which were to be

buried per the permit application were exposed.” Comp. at 49. Special condition ten of permit

number 1996-240-SP provides:

 

Any penetration or disturbance of the final cover material at this facility caused

by the construction of the gas control system shall be sealed or repaired to ensure

that a minimum of two feet of compacted clay final cover exits above all buried

appurtenances of the gas collection system. Comp. at 49.

 

Complainant’s Arguments

 

Ms. Kovasznay indicates that she observed that “various pipes pertaining to the gas

management system were exposed and not covered with at least two feet of clay” during her July

20, 1999 inspection. C.Mot.S.J. at Exh. N, pg. 3. Complainant argues that respondent was

required by special condition ten to place a two-foot clay cover over “appurtenances which were

supposed to be buried.” C.Mot.S.J. at 29. The observations of Ms. Kovasznay indicate that

there is no genuine issue of fact, according to complainant.

Id

. Complainant in the reply argues

that the reading of special condition ten urged by respondent is a narrow reading of the permit

and would allow a violator to skirt a valid permit condition. C.Reply at 20.

 

Respondent’s Arguments

 

 

Respondent asserts that summary judgment should be granted to respondent on this

count. R.Mot.S.J. at 14. Respondent argues that the sole evidence provided by complainant in

support of this count is the observations of the inspector. R.Mot.S.J. at 13. However, respondent

asserts that the gas management system was placed above ground and no areas of the landfill

were disturbed during the development of the system. R.Mot.S.J. at 14. In support of this

assertion, respondent points to the gas management acceptance report application dated April 22,

1999, and approved by permit number 1999-175-LP.

Id

. The application noted that final cover

restoration was not necessary as the area was not disturbed by the installation of the system.

Id

.

 

 

Respondent argues that the complainant is “selectively interpreting the language” of

special condition ten. R.Mot.S.J. at 14. Respondent asserts that special Condition Ten does not

require that all gas control systems be sealed or covered as the complainant suggests.

Id

.

Respondent maintains that the gas management acceptance report noted that the header and

lateral piping are all located above grade to accommodate the placement of final cover in the

future.

Id

.

 

Board Discussion

 

 

The Board finds that there is no genuine issue of material fact and summary judgment is

appropriate. The Board grants summary judgment to respondent on this count. Ms. Kovasznay

states that she “observed that various pipes pertaining to the gas management system were

---

 

20

exposed and not covered with at least two feet of clay.” Respondent has provided information

which indicates that the gas management system was placed above ground. Special condition

ten provides that that “a minimum of two feet of compacted clay final cover exists above all

buried appurtenances

[emphasis added] of the gas collection system.” Since respondent

provided information which indicates that the system was above ground, clay final cover is not

necessary. Therefore, the Board grants summary judgment to the respondent on count XVIII.

 

Count XIX

 

 

The complaint alleges that the respondent violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and special condition number

thirteen of supplemental permit 1996-240-SP. Comp. at 52. The complaint alleges that

respondent was required to provide financial assurance within 90 days from October 24, 1996, in

the amount of $1,431,360 and to increase the amount to $1,439,720 prior to the operation of the

gas extraction system. Comp. at 51. The complaint alleges that respondent failed to provide

such increased financial insurance until September 1, 1999. Comp. at 51-52.

 

Complainant’s Arguments

 

 

Complainant argues that there is no issue of fact that respondent failed to increase the

financial assurance by January 22, 1997 (90-days after issuance of the permit) as required by

special condition thirteen. C.Mot.S.J. at 16. Furthermore, complainant argues that the gas

management system was operating on March 31, 1999 and the respondent had failed to increase

the financial assurance.

Id

. Respondent did increase the financial assurance by September 1,

1999.

 

Respondent’s Arguments

 

The respondent concedes that partial summary judgment on this count for complainant is

appropriate. R.Mot.S.J. at 22. Respondent admits that the financial assurance was not raised

from $1,342, 500 (the amount required prior to January 22, 1997) to $1,431,360 by January 22,

1997.

Id

. Respondent agrees that summary judgment should be granted on that issue but only as

to a violation of the Act or the Board regulations but not both.

Id

.

 

 

Respondent argues that a genuine issue of material fact exists however as to whether or

not respondent increased financial assurance prior to the operation of the gas management

system. R.Mot.S.J. at 22. Respondent argues that when the gas management system actually

began operation is at issue.

Id

.

 

Board Discussion

 

 

The Board will grant complainant’s motion for summary judgment on count XIX in part.

Respondent concedes that the financial assurance requirements were not met in that respondent

failed to raise the financial assurance by January 22, 1997. However the Board denies the

motion for summary judgment as to the failure to raise the financial assurance prior to operation

of the gas management system. As indicated above, the Board finds that there is a genuine issue

---

 

21

of material fact as to when the gas management system began to operate (

see infra

@).

Therefore, the complainant’s motion for summary judgment is granted in part on count XIX and

denied in part.

 

Count XX

 

 

The complaint alleges that the respondent violated Section 21(d)(1) of the Act (415 ILCS

5/21(d)(1) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and special condition number

seventeen of supplemental permit 1989-005-SP. Comp. at 54. Specifically, the complaint

alleges that on March 31, 1999 and July 20, 1999 respondent pumped leachate, a waste, into

areas, which had not been certified or approved by the Agency in violation of special condition

number seventeen. Special condition seventeen of permit number 1989-005-SP provides:

 

Prior to placing waste material in any Area, a registered professional engineer

shall certify that the floor and/or sidewall liner or seal has been developed and

constructed in accordance with an approved plan and specifications . . . Such data

and certification shall be submitted to the Agency prior to placement of waste in

the areas referenced above. No wastes shall be placed in those areas until the

Agency has approved the certifications and issued an Operating Permit. Comp. at

54.

 

Complainant’s Arguments

 

 

Complainant asserts that the 1989 supplemental permit allowed Parcel A to expand

vertically and as a part of the expansion respondent was required to construct a clay barrier layer

between the existing landfill in Parcel A and the area of vertical expansion. C.Reply at 9-10.

The complainant argues that the clay barrier between the existing landfill and the vertical

expansion is the area, which needed to be certified prior to acceptance of waste. C.Reply at 10.

The complainant maintains that during the March 31, 1999 and July 20, 1999 inspections, Ms.

Kovasznay was told that leachate was being pumped into Parcel A. C.Mot.S.J. at 24. Therefore,

complainant argues there is no genuine issue of material fact and summary judgment should be

granted to complainant.

 

Respondent’s Arguments

 

 

Respondent argues that the language of special condition seventeen “applies only to those

areas of the landfill which have not received waste or where the floor and the side walls are

accessible.” R.Mot.S.J. at 11, citing Exh. 2 at 3. Respondent maintains that the entirety of

Parcel A was developed and operated for many years pursuant to prior permits.

Id

. Respondent

asserts that there was no requirement to recertify and thus no restriction for placing stormwater

in Parcel A even if the stormwater contained leachate.

Id

.

 

Board Discussion

 

 

The Board denies the motion for summary judgment on count XX, because the Board

found in count XVII that there is a genuine issue of material fact as to whether the material

---

 

22

pumped into Parcel A was leachate (

see infra

@). Therefore, the Board denies the motion for

summary judgment and count XX is sent to hearing.

 

Count XXI

 

 

The complaint alleges that respondent violated Section 21(d)(2) of the Act (415 ILCS

5/21(d)(2) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and 35 Ill. Adm. Code

807.623(a) by failing to provide a revised cost estimate. Comp. at 57. The complaint alleges

that pursuant to a supplemental permit issued on April 20, 1993, respondent was required to

provide a revised cost estimate to the Agency by December 26, 1994.

Id

. The complaint alleges

that respondent did file a cost estimate on July 26, 1996.

Id

.

 

Complainant’s Arguments

 

 

Complainant argues that Section 807.623(a) of the Board’s rules requires a revised cost

estimate be submitted every two years. C.Mot.S.J. at 19. Furthermore, special condition nine of

permit number 1993-066-SP required that respondent file a revised cost estimate by December

24, 1994, according to complainant.

Id

. Complainant maintains that respondent did not file a

revised cost estimate until July 26, 1996.

Id

.

 

In response to the arguments put forward by respondent, complainant maintains that

respondent misreads the requirements of the permit. C.Reply at 12. Complainant asserts that the

permit application does not provide any cost estimates and the permit is not a certification of cost

estimates.

Id

. Furthermore, the complainant argues, the permit is not an “independent

determination by the IEPA that the site meets the requirements of 40 CFR 258” but only a

certification that the permittee claims compliance.

Id

.

 

 

Complainant also takes issue with the respondent’s assertion that on-site retention of

revised cost estimates is sufficient. C.Reply at 12. Complainant argues that nothing in the

permit or the Board rules allows for such a substitution for filing with the Agency.

Id

.

Complainant notes that permit number 1993-066-SP even contains a clause that states that the

issuance of the permit does not release the permittee from compliance with other applicable

statutes and regulations.

Id

.

 

Respondent’s Arguments

 

 

Respondent argues that summary judgment should be granted in favor of respondent

because respondent did comply with the permit condition. R.Mot.S.J. at 15-16. Specifically,

respondent asserts that the permit required that a copy of cost estimates must be maintained at

the facility. R.Mot.S.J. at 15. Respondent argues that the cost estimates were filed at the facility

and that meet the requirements of the permits. R.Mot.S.J. at 15-17.

 

Board Discussion

 

 

The Board finds that there is no genuine issue of material fact and summary judgment is

appropriate for count XXI. The Board grants summary judgment to the complainant.

---

 

23

Respondent’s argument that a copy of the revised cost estimates was maintained at the facility

does not address the clear language of the Act and the Board’s rules that required revised cost

estimates to be filed with the Agency. The alleged violation in the complaint is for violation of

the Act and the Board’s rules, not a permit condition. The language of Section 807.623(a) is

clear that “cost estimates must be filed” every two years. Although “filed” is not specifically

defined by the Board’s rules in Part 807, the clear meaning of the word in the context of the

entire regulation is either filed with the Agency or the Board. Therefore, the Board finds that

respondent violated Section 21(d)(2) of the Act (415 ILCS 5/21(d)(2) (2000)

amended by

P.A.

92-0574, eff. June 26, 2002) and 35 Ill. Adm. Code 807.623(a) by failing to provide a revised

cost estimate by December 24, 1994.

 

Count XXII

 

 

The complaint alleges that respondent violated Section 21(d)(2) of the Act (415 ILCS

5/21(d)(2) (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and 35 Ill. Adm. Code

807.623(a) by failing to provide a revised cost estimate. Comp. at 59-60. The complaint alleges

that respondent was required to provide a revised cost estimate to the Agency by July 26, 1998.

Comp. at 59.

 

Complainant’s Arguments

 

Complainant points out that respondent filed a revised cost estimate on July 26, 1996.

C.Mot.S.J. at 21. Thus complainant argues, pursuant to Section 807.623(a) of the Board’s rules,

the next revised estimate was due July 26, 1998.

Id

. Complainant asserts that the respondent has

not filed the revised cost estimate.

Id

. Complainant also maintains that submission of cost

estimates as a part of the significant modification permit does not satisfy the requirements of 35

Ill. Adm. Code 807.623(a). C.Reply at 13. The cost estimates submitted as a part of

respondent’s significant modification permit are for closure pursuant to Part 811, not closure

pursuant to Part 807.

Id

. The requirements for closure are different under the two parts,

including different criteria and different methods argues complainant.

Id

.

 

Respondent’s Arguments

 

 

Respondent argues that summary judgment should be granted to respondent on this count

because cost estimates were submitted to the Agency. R.Mot.S.J. at 16-17. Respondent asserts

that cost estimates were submitted on August 5, 1996, October 24, 1995, April 30, 1997, October

29. 1997, March 20, 1998, June 18, 1998, September 14, 1998, August 13, 1999, and May 20,

1999. R.Mot.S.J. at 17, citing Exh. 2, pp. 1-2. Respondent argues that nothing in the permit

condition requires that the revised cost estimates be filed pursuant to Part 807. R.Reply at 13.

The only requirement in the permit is that the cost estimates be filed within two years, according

to respondent.

Id

. Therefore, respondent maintains summary judgment should be granted to the

respondent on this count.

 

Board Discussion

 

---

 

24

 

The Board finds that there is no genuine issue of material fact in count XXII and grants

summary judgment to respondent. The Board agrees that filing the revised cost estimates as a

part of the permit process for a significant modification permit is sufficient to meet the

requirements of the Act and the Board’s rules. This is particularly true when the cost estimates

are for closure/post-closure care under the more stringent and expensive Part 811 requirements.

 

CONCLUSION

 

 

After a careful review of the evidence submitted by both parties, the Board finds that on

some counts there are no genuine issues of material fact and summary judgment is granted.

Specifically, complainant’s motion is granted fully on counts III, IV, VII, VIII, IX, X, XIII, XIV,

XVI, XXI, and granted in part on count XIX, as no genuine issue of material fact exists on these

counts. The Board also grants respondent’s motion for summary judgment on counts XI, XVIII,

and XXII as no genuine issue of material fact exists on these counts; therefore counts XI, XVIII,

and XXII are dismissed. The Board finds that genuine issues of material facts exist on counts I,

II, VI, XV, XVII, and XX; therefore, both motions for summary judgment are denied on these

counts.

 

This matter shall proceed to hearing on counts I, II, VI, XV, XVII, XX, and in part on

count XIX to determine liability. The hearing shall also include evidence and testimony to be

used to determine the appropriate penalty on counts III, IV, VII, VIII, IX, X, XIII, XIV, XVI,

XXI, and in part on count XIX. Since respondent has prevailed on counts XI, XVII, and XXII,

these counts are dismissed.

 

ORDER

 

 

The Board finds that respondent has violated the Act and Board regulations as specified

in counts III, IV, VII, VIII, IX, X, XIII, XIV, XVI, XXI, and in part on count XIX of the

complaint. The parties shall proceed to hearing to present evidence on the appropriate penalty to

be levied against respondent for these violations. In addition the parties shall proceed to hearing

on counts I, II, VI, XV, XVII, XX, and in part on count XIX to determine the liability of the

respondent.

 

 

The Board dismisses counts XI, XVIII, and XXII.

 

 

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on October 3, 2002, by a vote of 5-0.

 

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board