CED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY 28
2004
VILLAGE OF SOUTH ELGIN,
COfltt~oi
Board
Complainant,
No. PCB 03-106
v.
(Enforcement)
WASTE MANAGEMENT
OF ILLINOIS, INC.;
Respondent.
NOTICE OF
FILING
To:
Donald J. Moran
Loren Blair
Pedersen & Houpt
161
North Clark Street-Suite 3100
Chicago, IL 60602
PLEASE TAKE NOTICE that on May 28, 2004, I have caused to be filed with the Illinois
Pollution ControlBoard; Thompson Center; Chicago, Illinois, the attached
VILLAGE OFSOUTH
ELGIN’s
MOTION FOR
SUMMARY
JUDGMENT,
a copy ofsame being served upon you.
By
I~4W&~J~MIa4.
One ofits attorneys
~
Derke S. Price
Stephanie A. Benway
ANCEL, GUNK, DIAMOND, BUSH, DICIANNI
&
ROLEK,
P.C.
140
South Dearborn Street, Sixth Floor
Chicago, Illinois 60603
Phone:
(312) 782-7606
Fax:
(312) 782-0943
CERTIFICATE OF SERVICE
The undersigned certifies that she served a copy ofthis Notice ofFiling together with its
attachmentby sealing a copy ofsame in a duly-addressed envelope, with proper first-class postage
prepaid, and depositing said envelope in the US
Mail at 140 South Dearborn; Chicago, Illinois, at
or before the hour of5:00 p.m., on May 28, 2~O4.
Under penalties as provided
by law
pursuant
to735
ILCS 5/1-109,
I certi~’
that the statements
set forth herein are true and correct.
__________________________________________________________________
L:\My Doeuments\Munieipalities\South Elgin\Transfer station\NotFilingMSJ Reply.wpd / 3327310.000
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
HM~
182004
VILLAGE OF SOUTH ELGIN,
)
POITAT1: OF ILLINOIS
a Municipal Corporation,
)
ution Control Board
)
Complainant,
)
)
No. PCB 03-106
vs.
)
)
(Enforcement)
WASTE MANAGEMENT OF ILLINOIS, iNC.,
)
)
Respondent.
)
VILLAGE OF SOUTH ELGIN’S RESPONSE
TO WASTE MANAGEMENT’S
CROSS MOTION FOR SUMMARY JUDGMENT
The Village of South Elgin
(the “Village”), by and
through
its
attorneys, Ancel, Gunk,
Diamond,
Bush,
DiCianni
&
Rolek,
P.C.,
hereby submits
its
response
to
Respondent
Waste
Management ofIllinois, Inc.’s
cross motion for summaryjudgment:
I
INTRODUCTION
On April
29,
2004,
the parties filed cross motions for summary judgment.
The Village
maintains that Waste Management of Illinois, Inc.’s
(“WMI”) proposal to build a waste transfer
station on the Woodland Landfill Site constitutes an impermissible expansion ofand on the site in
violation ofConditions 2 and 4 ofthe permit grantedby Kane County forthe Woodland ifi landfill
expansion via Resolution No. 88-155 (the “Resolution”).
The facts are undisputed that Condition
2 requiresWMIto comply with representations made at thehearing, including the representation in
the end use plan that the entire
site would become a passive recreation area post-closure and the
representation contained in
a letter from
Donald Price that WMI would not attempt
any further
1
expansion ~
the
site.
The facts are
equally undisputed that Condition
4
prohibits any further
expansion ~.the
site.
Unable
to
dispute these
facts,
WMI
resorts
to
ignoring
the
principles
of construction
applicable to
a piece oflegislation like Resolution
88-155,
including the principle that the entire
Resolution be read together, each part in light ofthe others.
Chicago Title and Trust Co.
v.
Village
of Inverness,
735
N.E.2d
686
(1St
Dist.
2000).
For example,
WMI
‘s
motion
wholly
ignores
Condition 2 and therepresentations made atthehearingconcerning the end useplam—representations
that make it plain that there
is no possibility ofany transfer station in a passive recreation area.
Likewise, WMI refuses to
give the language of Resolution 88-155 its
plain and
ordinary
meaning forhow elsecan it argue that building a second pollution control facility--thatwillprocess,
consolidate,
store
and transfer non-hazardous municipal
waste, including
landscape
waste
and
general
construction
or
demolition
debris
from
residential,
commercial
and
industrial
waste
generators--is not
an “expansion” in violation ofCondition 4?
Instead, W~vIIcommits the logical
fallacy ofarguing from the negative, contending that since Condition 4 does not expressly prohibit
“transfer stations” they therefore must be permissible.
In short, WMI’spositions aredesperate and withoutmerit.
The undisputedmaterial facts and
long established principles ofconstruction prove as a matter of law that WMI violated Conditions
2 and 4 ofthe Kane County Board’s Woodland III siting approval.
As such, the Village is entitled
to
summaryjudgment.
2
II
WMI’S STATEMENT OF FACTS ARE INCOMPLETE AND INACCURATE
A.
Paragraphs
21,
25
and 26 of WMI’s “Undisputed Facts” Are Not Facts
Paragraphs 21, 25
and 26 on pages
8
and 9 of WMI’s Motion for Summary Judgment are
legal
conclusions
and
cannot
be
considered
“undisputed
facts”
for
purposes
of
its
motion.
Paragraphs
21,
25
and 26
incorrectly argue that Condition
4
does not prohibit
development ofa
waste transfer station and is not an expansion ofthe Woodland landfill site.
Paragraphs 21, 26 and
26 are improperly identified as facts as it is precisely the issue the parties are asking this Pollution
Control Board to
decide.
As is
explained more fully below, WMI’s waste transfer proposal is an
expansion ofthe Woodland Landfill site and is in violation ofthe Woodland ifi siting conditions
included in the Resolution.
As such, paragraphs 21,
25
and
26 must be stricken and disregarded by
the Pollution Control Board.
B.
Material Facts Ignored by
W1’vII
As in its motion to dismiss response, in its motion for summaryjudgment, WMI ignores the
fact that the Village claims that WMI violated Condition 2 ofthe Resolution.
Condition 2
ofthe
Resolution
provided that the
Woodland Landfill
site “be developed
and
operated
in
a manner
consistent with the representations made at the public hearing on this matter held on July 26,
1988.
(Exhibit A-i, attachedto the Village’s Motion for SummaryJudgment).
At the July 26, 1988 public
hearing, WMI stated on the recordthat the Woodland ifiexpansion was “the last expansion that we
will attempt to
do on this site which is commonly known as the Woodland Landfill site.” (Exhibit
A-1,5.
Furthermore, WMI stated that the Woodland ffi proposal encompassed the entire
site and
looks
at a final end use planon the Woodland landfill that is a passive recreational use.
(Exhibit A-
1,3,5-7).
3
C.
Material Facts Misrepresented by
WMI
WMI erroneouslyclaims that the testimony ofWMI VicePresident Donald Price and South
Elgin Mayor Thomas Rolando establish that, notwithstanding the plain language ofCondition
4 of
the Resolution, WMI was not prohibited
from building a waste transfer station.
This
is simply a
mischaracterization of the testimony.
Contrary to WMI’s suggestion, Price did not testify that he meant the July 8,
1988
letter to
allow for building of a waste
transfer facility.
While it
is
true that
Donald
Price testified WMI
intended to build a transfer station on the Woodland site, his testimony referred to the time period
prior to receiving Woodland ifi siting approval and has nothing to do with the meaning ofthe July
8,
1988 letter.
Furthermore, Price acknowledged that WMI’s intention was never documented or
followed through in any way.
(PriceDep. 22).
In fact, when confronted with his July 8,
1988 letter
to
Mayor Rolando, Price testified that the letter was not misleading and was
accurate and
clear.
(Price Dep. 26-27).
The July 8,
1988
letter specifically states that no
further expansion will be
sought.
The letter does not refer to WMI’s intention to build a transfer facilityon the
site.
WMI also misrepresented the testimony of Mayor Rolando.
According to
WMI, Mayor
Rolando’s testimony suggeststhat sincethe July 8,
1988 letter did not mention a transferfacility, the
building ofone was not prohibited.
Once again, this is
a complete mischaracterizationofthe facts.
MayorRolandotestified that theJuly 8, 1988 letterset out the agreementbetweentheVillage
and WMI that WMI would seek no further expansion on the Woodlandlandfill site.
(Rolando Dep.
29).
Mayor Rolando further testified that it was his understanding that the letter would prohibit
expansion ofthe site by building ofa waste transfer station.
(Rolando Dep.
35).
Furthermore, the
4
Mayor explained that
the matter of a waste transfer station was never discussed and if it had been
proposed by WfvII,
the Village would have objected to it.
(Rolando Dep. 38, 41).
III.
WMI’S
WASTE
TRANSFER
STATION
PROPOSAL
IS
AN
EXPANSION
AND
VIOLATES THE CONDITIONS
IMPOSED BY THE COUNTY BOARD
Contrary to its assertions, WMI’s proposal to build a waste transferfacilityon the Woodland
Landfill site violates
the conditions for Woodland III site approval imposed by the County Board.
Conditions 2 and 4 imposed by the Kane County Board prohibit any attempt by WMI to expand the
Woodlandlandfill site.
Condition 2 requires thatthe entire sitebe developed asa passivcrecreation
park upon closure ofthe landfill and Condition
4 prohibits further expansion ofthe
site.
A.
Building
a Waste Transfer
Station Constitutes an Expansion
WMI asserts that adding a pollution controlfacilitydoesnot constitute-an-expansion bec.ause
a waste
transfer
facility is
distinct
to
a landfill
operation.
WMI’s argument,
however,
ignores
established case law and this Pollution Control Board’s decision as to the meaning of expansion.
ByWMI’s own definition, an expansion is an increase in the size or capacityofan existing landfill.
MI.G. Investments, Inc.
v. EPA,
122 Ill.2d 392,
523 N.E.2d 1(1988).
An “expansion” includes an
extension of nonconforming use or
an increase
in
intensity of same.
People
v.
Treim
Steel
&
Processing,
5
Ill.App.2d 371,
125 N.E.2d 678
(1St Dist.
1955).
This Pollution Control Board has
already noted that a significant increase in usage can constitute an expansion of a then permitted
waste transferfacility.
(March 23, 2003 Order ofPollution ControlBoard, citing
Continental Waste
Industries ofIllinois, Inc.
v. Mt.
Vernon,
PCB 94-138, slip op. at
5,
20 (October 27,
1997).
Contrary to WMI’ s
suggestion, it is irrelevant that the transfer station would be
sited on a
separate 9-acre portion apart from the 121-acre waste footprint.
W1N~II’stransfer station proposal
5
aims to increase the intensity ofthe use ofthe entire
130-acre Woodland Landfill site by doubling
the numberofpollution control facilities, increasing trucktraffic, expanding the operatinglife ofthe
site, and adding septic, well and waste management systems where none previously existed.
B.
Condition
4 Does
Not
Allow Development ofa Waste Transfer Station
The Village is
entitled to
summary judgment on this matter because Condition
4 does not
allow development ofa waste transfer station.
There is no dispute that the plain language ofthe
condition clearly states that the site shall not be expanded further. Incredibly, WMI maintains that
Condition 4 limits
only the developmentofthe sanitary landfill and not to the entire site.
According to WMI, the testimonyofDonald Price and Mayor Rolando regarding the July 8,
1988
letter supports its
contention that
Condition
4
does not mean that
it cannot build a waste
transfer station on the Woodland site.
WIV1I’s reliance on theirtestimony, however, is misplaced.
Donald
Price, the author of the July
8,
1988
letter, never testified to
the meaning of the
letter.
Rather,
Price testified that
the
letter was
accurate and
clear.
(Price Dep.
26-27).
While
Price
claimed that itwas WMI’s intention to builda transferstation, he acknowledged that this intent was
never acted upon.
Mayor Rolando’s testimony coincides with Price’s.
The Mayor testified that
the matter of
a waste transfer station was never discussed.
(Rolando Dep. 38,
41).
Ifit had been proposed by
WMI,
the Village would have
objected to
it.
(Rolando Dep.
38,
41).
The July
8,
1988
letter
provided that WMI would seek no further expansion on the Woodland landfill site and that it was
(Rolando Dep. 29).
Mayor Rolando testified that he understood the letter to prohibit expansion of
the
site by building of a waste transfer station.
(Rolando Dep.
35).
6
C.
Building
a Waste Transfer Station is Also Prohibited by Condition 2
WMIignores the factthat Condition 2 also prohibits the building ofa waste transfer station
on theWoodland site. Condition 2 oftheCounty Board’ssiting approvalrequires that theWoodland
site be converted into a passive recreation areapost-closure.
Pursuant to the end-use requirements
under
Section
807.206
of the
Illinois
Administrative
Code,
WMI
explicitly
agreed that
upon
completion, the entire
site will be comprised ofland which will be left in a nature state and allow
forvarious recreational uses.
(Exhibit 7, attachedto the Village’s Motion for Summary Judgment).
IV.
CONCLUSION
TheVillage is entitled to surnmaryjudgmentbecause thereis no material factsin dispute and
the language ofthe Conditions is clear.
WMI’s proposal to
site new waste transfer facility on the
Woodland Landfill
site violates
the
conditions
imposed by the
Kane
County
Board
for
siting
approval of Woodland III as building the new
structure constitutes
an
expansion
and
does not
conform with WIvil’s end-use plan for the site.
WHEREFORE, the Village ofSouth Elgin respectfully requests that this Honorable Board
enter and order (a) denying WMI’s motion for summaryjudgment; (b) granting sunmiaryjudgrnent
in
favor of the Village; (b) find that WMI’s attempt to
site a transfer station on the Woodland Site
violates
the Act and
rules,
regulations,
permits
and
terms
and
conditions
imposed by
the Kane
County Board in Resolution
88-155;
(c) ordering WMI to cease and desist from its
attempt
to site
a transfer station; and (d) providing any such other and further relief as the Board deems equitable
and just.
7
Respectfully submitted,
The Village ofSouth Elgin
By:
RMJOJ~AV~(JU1~
One ofits
attorneys
Derke J. Price
Stephanie A. Benway
ANCEL,
GLINK, DIAMOND, BUSH, DICIANNI
&
ROLEK,
P.C.
140 South Dearborn
Street, Sixth Floor
Chicago, Illinois 60603
(312) 782-7606
(312) 782-0943 Fax
8
