RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
15
2004
VILLAGE OF SOUTH ELGIN,
STATE OF
ILLINOIS
Pollution Control
Board
Complainant,
No.PCBO3-106
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
June
15, 2004,1 have caused to be filed with the Illinois
Pollution
Control Board;
Thompson
Center;
Chicago, Illinois,
nine
(9)
copies
of the
attached
VILLAGE OF SOUTH ELGIN’s REPLY
MEMORANDUM IN
FURTHER SUPPORT OF
ITS MOTION FOR SUMMARY JUDGMENT,
a copy of same being served upon you.
By______________
One ofits attorney~J
Derke J. 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 of this Notice of Filing together with its
attachment by 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
June 15, 2004.
Under penalties as provided by law
pursuant
to735
JLCS
5/1-109,
I certify that the statements set forth herein are true and correct.
L:\CDonovan\My Documents\Attorney\Sab\Waste Management of llliiiois\NotFiling.wpd
/3327310.000
CLER~. S OF
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
i 520011
LLINO~S
VILLAGE OF SOUTH ELGIN,
)
~~~ontro1
6oa~
a Municipal Corporation,
)
)
Complainant,
)
)
No. PCB 03-106
vs.
)
)
(Enforcement)
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondent.
)
VILLAGE OF SOUTH ELGIN’S REPLY MEMORANDUM
IN FURTHERSUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT
The Village of South Elgin (the “Village”), by and through its attorneys, Ancel, Glink,
Diamond, Bush, DiCianni & Rolek, P.C., hereby submits its reply memorandum in further
support ofit’s motion for summaryjudgment:
I.
INTRODUCTION
All ofthe briefing boils down to two inexorable conclusions:
1) the material facts are
undisputed; and 2) the Herculean effort ofWaste Management ofIllinois, Inc.
(“WMF’)
to
simultaneously write new meanings for common words, cut and paste Kane
County Resolution
88-155,
and juggle snippets ofvarious
statutes is insufficient to overcome the simple fact that
WMI’s application for a transfer station on the Woodland Site was an attempt to
expand that site
in violation ofthe plain and ordinary language ofthe conditions ofapproval imposed by Kane
County—conditions that prohibited any expansion “on” or “of’ the site and did so in
contemplation ofWMI’s promised end use plan in which the entire
site is to become
a passive
recreation area.
1
II.
ARGUMENT
A.
WMI’s Geographic Boundary Argument
Contradicts the Plain Language ofthe Conditions.
Frustrated by the meaning ofthe term “expansion” in both common parlance and in the
case law,
WMI argues, instead, that Resolution 88-155 prohibits only expansions ofthe landfill
operations and, because the proposed transfer station sits outside the geographic boundaries of
the landfill operations (I, II and 111), it cannot constitute an “expansion” ofany ofthem.
But this
geographic boundary argument ignores the plain and ordinary language ofResolution 88-155 that
differentiates between the “site” and the proposed Woodland ifi expansion, and that also
prohibits any expansion “on” the “site” not just expansions
“of’ the site.
Donald Price’s letter—made an express part ofthe conditions--states: “Waste
Management ofIllinois,
Inc. agrees and stipulates that this expansion will be the last expansion
that we will attempt to do g~thissite, which is commonly known as the Woodland Landfill site.”
(Exhibit
A-5,
page
14, emphasis added).
In order to give the terms ofthis condition full
meaning and effect, as required, it cannot be limited
to prohibiting expansions ofthe geographic
boundaries ofthe landfill operations but must also prohibit any expansion ~
the Woodland
Landfill site.
More specifically, WMI’s argument that the representation in Price’s letter limits only
geographic boundaries ofthe landfills impermissibly equates the term “expansion” with the
meaning of the term “site.”
In other words, by saying only that Price promised no further
geographic expansions (something Price himself contradicts), WMI would re-write the last
sentence as “this expansion will be the last expansion that we will attempt
to
do on this
2
expansion.”
But this is
a tautology that renders the condition without meaning.
Because
Resolution 88-155 must be construed in its entirety and must be construed to give effect to every
part, WMI’s proposed interpretation cannot stand.
B.
WMI’s
Geographic Boundary Argument
Also
Contradicts the Representations Made
About the Site
And
the Nature of Its Use.
WMI’s geographic limits argument further rests on the false premise that each parcel of
the site exists in a discreet vacuum unrelated to the whole ofthe entire site.
First, each ofthe
applications for the landfill operations involve, by law, considerations ofthe airspace and
geology ofthe entire site.
Indeed, the specific representations and exhibits that are a part of the
record for the Woodland Ill expansion refer to the full Woodland Landfill site in its
entiretynot
just the geographic limits ofthe landfill.
Second, the case law holds that “expansion” includes intensity ofuse—a concept that
requires reference to
the entire site.
Here,
thereis no dispute that the proposed transfer statioii
would increase the intensity ofthe
entire
130-acre Woodland Landfill Site by doubling the
current number ofpollution control facilities, increasing truck traffic,
extending the overall
operating life ofthe site, and adding septic, well and waste management systems.
Though WMI
attempts to factually distinguish the case law relied upon by the Village, WMI cannot distinguish
the sound legal principal that a significant increase in use constitutes
an expansion.
Continental
Waste Industries ofIllinois, Inc.
v. Mt. Vernon,
PCB 94-138;
People
v.
Treim Steel & Processing,
5
Ill.App.2d 371,
125 N.E.2d 678
(1st
Dist.
1995).
Third, WMI’s cut and pastejob on the words “area ofexpansion” from the
Environmental Protection Act is similarly unavailing.
WMJ—again—refuises to take the statute
3
in its entirety and read
all parts of415
ILCS 5/3.330 together so that every part has meaning and
effect.
Whenproperly construed, the terms “area of expansion” are seen as only one ofseveral
recognized forms ofexpansion contemplated by the Act.
As the case law interpreting the Act
makes clear, a change in the nature or intensity ofuse will also constitute an “expansion” In sum,
doubling the number of“pollution control facilities” on a site is an expansion.
C.
WMI’s
Geographic Boundary Argument
Contradicts the Testimony.
WMI’s continued reliance on the testimony ofPrice and Rolando is in error.
First, Price
did not testify that he meant his
July 8,
1988 letterto allow for building ofa waste transfer
facility.
Although Price explained that WMI intended to build a transfer station, he
acknowledged that this intention was
never documented orfollowed through
in any way.
(Price
Dep. 22).
Acc6rding to Price’s testimony, his
July 8,
1988 was clear.
(Price Dep. 26-27). It is
disingenuous for WMI to now claim that by agreeing to not seek any further expansion ofthe
Woodland Landfill
site, it did not preclude the building ofa second pollution control facility on
the site as WMI clearlypromised not to expand further development
on
the entire Woodland
Landfill site.
Likewise, neither does Mayor Rolando’s testimony support WMI’s arguments.
Rolando
testified that the July 8,
1988 letter articulated the agreement between the Village and WMI that
WIV11 would seek no further expansion on the Woodland Landfill Site.
(Rolando Dep. 29).
According to
Mayor Rolando, WMI was therefore prohibited
from expanding the site by building
any new pollution control facility.
(Rolando De. 35).
Furthermore, the Mayor testified that if the
issue of a waste transfer station had been specifically raised, the Village would have objected.
4
The addition ofa waste transfer station to the Woodland Landfill Site would clearly be an
expansion on and ofthe site.
The undisputed facts unequivocally show that WMI expressly
agreed that is would seek no such expansion, thus, it is prohibited from doing so now.
As such,
the Village is entitled to summaryjudgment.
D.
Building
a Waste Transfer Station Violates Condition
2
ofResolution
88-155
Condition
2 provides that the site “will be developed and operated in a manner consistent
with the representations made at the public hearing in this matter held on July 26,
1988 and to
all
applicable laws, statutes, rules and regulations ofthe Illinois Environmental Protection Agency
and the Pollution Control Board...”
At the July 26,
1988 public hearing, WMI was asked to
explain the difference between its
final useplan for Woodland ifi in comparison to
Woodland I
and II.
(Exhibit A-7, page
54,
attached to the Village’s Motion for Summary Judgment).
WMI’s
witness explained that the Woodland ifi proposal “encompasses the entire
site and looks at a
final land use plan on that land form that is a passive recreational use.”
Id.
Similarly, in its
1988
siting application forWoodland ifi, WMI detailed its proposed end-use plan for the site,
representing that “upon completion the site will be comprised ofa combination offilled land and
unfilled land, which will be left, essentially, in a natural state...A major component of the
end use
proposal is to
allow forhiking and bicycle riding across this large open space...” (Exhibit A-6,
attached to the Village’s Motion for Summary Judgment).
WMI asks this Pollution Control Board to ignore these facts.
Instead, WMI argues that
because Condition 2 did not explicitly refer to its end use plan, its proposal to build a waste
transfer station is not in violation.
WMI further argues that it cannot be in violation of Condition
2 because it still intends to implement an end use plan.
It is
irrelevantwhether WMI plans to
5
implement an end use plan in the future.
The point is that WMI promised to apply its plan upon
completion ofWoodland ifi.
Erecting a waste transfer facility that will process, consolidate,
store and transfer non-hazardous municipal waste, including landscape waste
and general
construction or demolition debris from residential, commercial and industrial waste generators”
does not meet this objective.
As such, WMI’s argument fails and the Village is entitled
to
summaryjudgment.
WHEREFORE, the Village ofSouth
Elgin respectfully requests that this Honorable
Board enter and order (a) denying WMI’s motion for summaryjudgment; (b) granting summary
judgment
in
favorofthe 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.
Respectfully submitted,
VILLAGE OF SOUTH ELGIN
By:_______________
ne ofits
attorneys
Derke J. Price
Stephanie A. Benway
ANCEL, GUNK, DIAMOND, BUSH, DICIANNI
&
ROLEK,
P.C.
140
South Dearborn Street, Sixth Floor
Chicago, Illinois
60603
(312) 782-7606
6
