R’ECE~VED
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT
27
2004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF
ILLINOIS
)
PoIIut~onControl Board
“Complainant,
)
)
v.
)
PCB
97-2
)
(Enforcement)
JERSEY SANITATION CORPORATION,
)
au
Illinois corporation,
)
)
Respondent.
)
RESPONDENT’S CLOSING
BRIEF
NOW COMES Respondent, JERSEY SANITATION CORPORATION, through
its undersigned attorney,
and for its closing brieffollowing hearing in this enforcement
case, states as follows:
HISTORY OF JERSEY SANITATION CORPORATION
According to Respondent’s unrebutted testimony, the landfill
known as Jersey
Sanitation Corporation, which is a small (10 acre) landfill located outside of Jerseyville,
was established in
1975
by a man named Ralph Johnson, who had inherited some 200
acres offarmland that included a deep natural ravine.
(T. 328).
At the time, Pamela
Shourd and her family lived in
a house barely 100 yards away from the ravine.
(TR. 328-
329).
The Shourds had moved in
a year earlier, before there was any landfill.
(TR.
328-
329).
The ravine stretched down the hill towaEd
Sandy Creek,
with a natural
gradual
slope. (TR. 329-331).
Mr. Johnson operated the landfill from the summer of
1975
clear
into the
1980s as a virtual open dump.
(TR.
331- 333).
In Mrs. Shourd’s own words,
“there was no--no people, no
equipment, nobody worked there.
It was a place where
people could come and drop off their trash and drive away and leave it.”
(TR. 333).
L
Through a contract with the city ofJerseyville, literally anyone from Jerseyville could
drive out at any time
and toss whatever trash
they wanted into this ravine, as even the city
ofJerseyville itself did
(TR. 333-334).
In terms ofappearance, the landfill “was just
piles of trash.”
(TR. 334).
The trash
was virtually never covered, although
“occasionally, he Ralph
Johnson
would
hire a man with a bulldozer to come and push it
around a little bit, to push it down, that stack, so they could pile some more on.” (TR.
334).
In addition,
Mr. Johnson burned huge piles ofmaterials, including landscaping
brought from other sources, at this
ravine location.
According to
Mrs. Shourd, these
conflagrations were so significant that they caused flames to
rise hundreds offeet in the
air--”he always lit the fires at night, and then I’m talking
about huge fires, fires where
sparks were going up
into the air, I guess hundreds offeet.”
(TR. 336).
Mrs. Shourd was
very concerned about the safety of her family during these fires: “I
had four kids asleep at
the time in house, so I would sit up all night and watch it until it had
died down enough to
be safe.”
(TR.
336).
As might be expected, this open dump was a perfect habitat for rats.
Mrs.
Shourd
testified, in fact, that she had
to redesign her chicken house to keep the rats from getting
in and eating the baby chicks.
The trash also
attracted flies and birds,
and created an
ever-present odor.
(TR.
335-336).
Mrs. Shourd, and a few others living
in the same area (see TR.
340), complained
to the authorities.
They complained to
the Sheriff, they complained to the city of
Jerseyville, and they complained to the Illinois Environmental Protection Agency.
(TR.
336).
Despite
all of this complaining, the
~jjiy
enforcement initiative of which she was
2
aware was a
single administrative citation violation that cost Ralph Johnson
$1,500,
issued by the IEPA--Johnson, though, laughed off the penalty
as simply his “only
Overhead” (TR. 337).’ Significantly, the IEPA inspector assigned to the Jersey Sanitation
area during Ralph Johnson’s ownership also recollected only
a single administrative
citation action ever brought against this
nightmare facility during Ralph Johnson’s
ownership.
(TR.
142-143).
By the late
1980s the neighbors
living near the Jersey Sanitation Landfill had had
enough, and determined to
purchase the landfill from Ralph Johnson as an act of self
preservation.
(TR. 341- TR.
344).
The
IEPA recommended that the shareholders
not
purchase the landfill, but after
18 years ofRalph Johnson’s unchallenged behavior,
understandably the neighbors did
not believe the IEPA would clean up the landfill, so
they went through witl1 the purchase.
(TR.
345-346).
A stock purchase occurred in
November
1989, and
the buyers’ sole purpose in making the purchase was “to clean it up,
and close it.” (TR.
346).
According to Mrs. Shourd, “we
figured that was the only way
we would ever be taken care of is if we did it.”
(TR. 346).
The landfill operated only twomore years, until September
1992, when it ceased
accepting waste.
(TR.
346).
According to Mrs.
Shourd, they needed
to operate it during
those two years to have enough money to
adequately close the facility:
“we didn’t really
have the money to just--just be able to
buy equipment and bring it in and close it up.
We
had to operate it for awhile to
try and generate enough income to shut it down.”
(TR.
346).
The landfill literally had no operating equipment at the time these new
shareholders purchased the facility in
1989 (and yet the JEPA had allowed the facility to
3
remain open) (TR. 346).
By the time the facility was closed in
1992, the landfill had
purchased ten pieces ofequipment, and was leasing another; the purpose of all of the
equipment was “un
order to
compact trash, haul dirt over there, and cover it up, and
compact the dirt.”
(TR. 346-347).
Also at the time of the purchase, only one part-time employee worked at the
facility--”a man who unlocked the gate and hung around there on Saturday afternoon.”
(TR. 347).
During the following two years, the new stockholders themselves learned
to
operate
the landfill, and hired (and fined) numerous employees in
an effort to
adequately
staff the facility.
(TR. 347-349).
Significantly, far from assisting in this
process by
offering advice or counseling, which was not forthcoming (“the EPA doesn’t really want
to tell
you how to do anything.
They just want to tell you, find a way and do it.” (TR.
349)), the IEPA substantially increased its inspections and
other presence at Jersey
Sanitation.
Yet according to
Mrs. Shourd, during that two year period the operations and
condition of the landfill were improved substantially.
(TR. 349).
After the landfill quit accepting trash
in September 1992, the revenue stream to
pay for the improvements also
ceased.
“During the time we accepted waste, we paid into
the closure/post-closure
fund and tried to have the equipment and dirt we needed to
cover up the landfill.
From that point on, we had no income.” (TR.
352-353).
Virtually
no profit was realized by the shareholders
through the efforts, aside from a peace of mind
from knowing that the terrible nuisance located next to their properties was abated--
“every cent that came into that landfill went into either the post-closure or closure/post-
closure fund or into equipment to operate the landfill and to cover it up and
close it.”
(TR.
353).
4
The IEPA’s unfortunate response to the efforts ofthese neighbors to
adequately
close the landfill has regrettably been hostile, and continues to be so to this very
day.
As
Mrs. Shourd testified,’followingthe disclosed transfer of shares to the new owners, the
JEPA responded
by increasing enforcement and finally addressing operational
deficiencies, despite the improvementfrom the time ofRalph Johnson’s ownership.
No
explanation has been given as to why the IEPA waited until 1990
to begin its
vigorous
enforcement concern with this landfill.
Even to this
very day, in
its closing brief, the
JEPA
claims that the fault lies with
the victim, rather than the perpetrator of the offense.
The Complainant’s closing briefargues that this whole enforcement case is a result ofthe
actions and behavior of the Jersey Sanitation owners--the very
ones who through their
own financial risk and personal efforts assured that this
landfill would be closed without
costing the State ofIllinois
millions ofdollars (as other landfills in
this state have)!
(Complainant’s brief, at
127, citing People v.
Gilmer, PCB 99-27 (August 24, 2000), and
noting there that IEPA had itself conducted closure at a cost of
$3..5
million to the State).
ai~c~
Illinois
FIRST Abandoned Landfill Program (IEPA Dec. 2000), which
chronicles
the
$50
million spent on just 32 abandoned landfills
in Illinois, plus another
$15
million spent at another abandoned landfill, Paxton II, in
southwest Chicago.
(A
copy of this
document is available from the IEPA’s website at
www.epa.state.il.us/Iand/publications).
Despite the hostility of the regulators, Jersey Sanitation persevered and
eventually
obtained the IEPA’s certification that the landfill had been properly closed in compliance
with all permit, regulatory
and statutory requirements.
Indeed, the IEPA
1999 letter
certifying closure acknowledged that the closure had been achieved, and the post-closure
5
care had begun, as of September 30,
1994!
(Parties’
Ex.
#42).
In granting that, of
course, the IEPA acknowledged, both as a matter of fact and of law, that the landfill was
in compliance with all such requirements as ofthat September 30,
1994 date.
.~
Bradd
v. Illinois EPA, PCB 90-173 (May 9,
1991);
see also 35 Ill. Adm. Code 807.508.
Notwithstanding Jersey Sanitation’s success in accomplishing certified closure as
of 1994, the IEPA included in the post-closure permitcertain conditions relating to post-
closure activities (specifically,
concerning groundwater monitoring and assessment, and
concerning the need for a certified operator), which Jersey Sanitation challenged as
unnecessary.
This Board, of course,
is well aware that it agreed with Jersey Sanitation
that these conditions were not required for the Jersey Sanitation facility, and were
therefore properly stricken.
See Parties’
Ex. #44.
The IEPA appealed that ruling to the
appellate court, which promptly affirmed this Board’s decision.
Parties’
Ex. #48.
Despite this Board’s ruling on the permit appeal, and the appellate court’s
unambiguous affirmance, in this
very case the IEPA (through the Office ofthe Attorney
General, of course) has claimed that those
very permit conditions which were stricken
should still serve as the basis for enforcement against Jersey Sanitation!
In response to
Jersey Sanitation’s straightforward motion for summary judgment asking that allegations
relating to those stricken provisions be removed from this case, the JEPA
argued that
somehow Jersey Sanitation was still bound by those
conditions and its failure to
have
complied with the stricken requirements
was somehow actionable.
This Board, of
course, rejected that position and
granted Jersey Sanitation’s motion
to
strike allegations
relating to the stricken conditions.
See Parties’ Ex. #46
6
As discussed in more detailed below, the IEPA is persisting even in its testimony
at hearing and in its
closing brief in this case in its
position that it is entitled to
the relief
addressed in the stricken permit conditions, despite having lost every challenge to that
ruling.
The IEPA argues that despite the factthis
Board (and the appellate court)
unambiguously ruled that statistical
analyses and other groundwater evaluation
techniques
included in the post-closure permit were not required for this facility, that the
same relief should be ranted to it here.
If nothing else bespeaks
the IEPA’s animosity
toward Jersey Sanitation, this surely does.
OPERATIONAL ALLEGATIONS
With only
the exceptions
discussed below, Jersey Sanitation concedes that it
violated the Environmental Protection Act and this Board’s regulations with respect to
the various operational allegations included
in the Complainant’s complaint.
In
commenting
on the IEPA’s photographs of some of these conditions,
Mrs.
Shourd made
clear that Jersey Sanitation has n’o claim that the various photographs are not accurate:
“I
mean, they have the pictures.
I’m sure that--that there were
days that we were not able to
cover it.” (TR. 347-348).
Hence, with
respect to these operational allegations, Jersey
Sanitation concedes the existence of these violations.
Moreover, Jersey Sanitation
recognizes that mere good faith or extenuating circumstances do not change the existence
of such a violation or violations; on the other hand, these extenuating circumstances and
the history of this situation should serve as a substantial mitigating factor in the Board’s
determination of any appropriate penalty.
Notably, Jersey Sanitation is in the eleventh
year of its
post-closure care, and is not in any landfill business anymore.
7
The specific concessions are the following, as summarized in Complainant’s post-
hearing brief:
1.
Count II, brief section I.
2.
Count II, briefsection J.
3.
Count III, brief section K.
4.
Count IV, brief section L.;
L.2 and
L. 4.
5.
Count IV, brief section M.
1 and
M. 2
6.
Count V, brief section 0.
7.
Count VI, brief section P.
The exceptions
to the above consists of the following:
(a) The opening burning allegations.
As Mrs. Shourd testified, the landscape
waste fire at issue in that allegation was not on any part ofthe permitted landfill area, but
instead was on farm ground located next to the landfill.
The IEPA inspector,.Mr.
Johnson, disagrees with Mrs.
Shourd’s assertion, but he has provided no basis to believe
that he had a better understanding ofthe specific boundaries of the permitted landfill
and
the neighboring farm than the owner and a nearby resident since
1974 would
have.
As
the party with the burden of proof, it would have been a simple matter for the IEPA
to
have definitively identified the location of the fire with respect to the permitted landfill
boundary.
(b)
Composting—Count IV, brief section L.
6.
Once again, Mrs. Shourd testified
that the composting which took place in the early 1990s was done on the farm property
and not on the permitted landfill property.
(TR.
351).
In fact, she explained that the
incident occurred right after the law changed to
prohibit the disposal of lawn waste in
permitted landfills,
and as an accommodation to customers Jersey Sanitation attempted
to
apply the lawn waste
t
the adjacent farm property, as was allowed by the law at the time.
That experience was a failure, and Jersey Sanitation soon thereafter quit accepting lawn
waste.
(~4.).
In any event, despite Mr. Johnson’s unsubstantiated claims to the contrary,
this composting was conducted outside the permitted boundaries of the landfill.
(c)
All
Section
12 allegations-- As
will be discussed in more detail below,
while
Jersey Sanitation concedes that waste
iii water, and leachate flowing toward water on the
surface, can constitute Section
12(a) or (d) violations, the IEPA’s assertions that a
groundwater “problem” exists here or that Jersey Sanitation is guilty of not providing
analyses and studies which this Board held to
be inapplicable to this facility, are
completely unfounded.
(d)
Previously adjudicated allegations.
As
the Complainant recognizes, certain
allegations included in this complaint were previously the subject of administrative
citation proceedings brought against Jersey Sanitation, concerning which Jersey
Sanitation, was imposed and paid a penalty.
The Complainant has magnanimously
agreed not to seek penalties for those specific violations.
However, Jersey Sanitation
would also
add all violation identified in the same inspection reports used to
prosecute
the administrative citations.
As a matter of law, the IEPA cannot proceed both of the
basis of administrative citation and straight enforcement, but it is attempting to do so here
with respect to those violations.
9
GROUNDWATER ISSUES
The bulk of Complainant’s closing brief, as indeed was the bulk of Complainant’s
evidence at hearing,
is devoted to convincing this Board to revisit the issue decided in
the
prior permit appeal, and the prior summary judgment proceeding in this case, and to
rule
that Jersey Sanitation must do a full-fledged evaluation ofthe groundwater flowing
through its property.
In the successful permit appeal, this Board excised from the permit
the requirementthat Jersey Sanitation obtain significant amounts of new data concerning
the groundwater at this facility and then evaluate that information using a variety of
complicated techniques,
including a statistical analysis.
As both this
Board and the
appellate court noted, Jersey Sanitation has been closed pursuant to the 35 Il. Adm.
Code
Part 807 regulations, which do not have requirements as stringent as those imposed by
the IEPA’s condition.
(~
testimony ofAndy Rathsack, TR.
375-397).
In contrast, ~
landfills--those remaining in operation after September 1992--are required to prepare
such sophisticated groundwater analyses.
This Board recognized that the IEPA’s
proposed condition was an
attempt to
impose the more stringent regulations upon Jersey
Sanitation’s closed Part 807 landfill, whereas only the more general requirements ofPart
807 were actually required.
In fact, this Board, and the appellate court, found that instead
ofthe groundwater analyses and evaluations promoted by-the -IEPA, Jersey Sanitation’s
facility was subject to the groundwater analysis suggested in
its own application for
certification of closure and
commencement ofpost-closure
care, which this
Board
expressly found to be
sufficient for compliance with Section
12 ofthe Environmental
Protection Act and Part 807
of this Board’s regulations.
The permit application
established the number of samples that would be retrieved from the four monitoring wells
10
‘currently on-site:
“nb
changes in the groundwater monitoring program are anticipated
during closure or post-closure care.”
Further, the permit application stated that
“groundwater monitoring results would be
evaluated each quarter against background
data, General Use Water Quality Standards, and other historic water analysis information.
If a trend is believed to be
developing, more frequent sampling,
(e.g. monthly)
may be
performed to substantiate or dismiss the likelihood of site impact.
A professional
engineering firm should be retained to
develop future actions and/or plans for subsequeuit
IEPA approval.”
(~
Parties’
Ex. #44, at
13).
According to
this Board’s permit appeal ruling and the appellate court’s affirming
opinion, the above language constitutes the groundwater evaluation for Jersey Sanitation.
See Parties’ Exs. 44 and 48.
Despite these rulings, the IEPA’s primary issue in this case concerns the
groundwater monitoring program at Jersey Sanitation.
The IEPA’s
premiere witness,
Karen Nelson, devoted her testimony during two separate days of hearing to issues
pertaining to conducting a Part 811-style groundwater analysis, and modifying
substantially the groundwater monitoring network in place at the landfill to fulfill her
own professed beliefs about an appropriate groundwater monitoring system.
All of this
testimony, though, is incompetent,
and the relief sought, aside from having been barred
by this Board’s previous order, is unnecessary in this enforcement action.
It appears that Complainant is arguing that the groundwater analysis it proposes is
necessary to
remediate the alleged Environmental Protection Act violations.
In other
words, Complainant appears to argue that because ofcertain section
12 alleged
11
violations, remedial strategies must be employed which, miraculously, appear to
be
exactly the same as with the IEPA’s stricken groundwater monitoring conditions.
Unfortunately for Complainant, neither prong of its mini-syllogism has any
validity.
First, the Complainant has completely failed to establish that Jersey Sanitation
is causing violation of section
12 of the Environmental Protection Act.
To be sure,
Complainant has attempted to
establish this by arguing that
in the Watts case this Board
found that the existence ofcontaminated groundwater underlying the respondent’s
landfill constituted sufficient evidence to find
a violation of section
12.
Here, that relief
is not available,
because the IEPA’s own witnesses admitted that in this
case the mere
existence of certain levels of contaminants in the groundwater
could not and do not
establish that Jersey Sanitation was the source.
~
TR. 43; TR.
45-46 (Joyce Munie);
TR.
305-306 (Karen Nelson).
Complainant’s closing brief raises
alarmist claims that the
iron levels underlying Jersey Sanitation’s facility are the “highest” that Karen Nelson has
ever seen, but in addition to the fact that other witnesses were not nearly so concerned
-
(Kenn Liss, for instance, specifically opined there appears
no public health danger at this
facility—see TR. Of 1-13-04, at 28-29), in
any event even she admitted that she had
inadequate information to conclude that those levels resulted from the Jersey Sanitation
landfill.
(In fact, she even question the validity of the groundwater monitoring system,
rendering her guarded belief that Jersey Sanitation might
be impacting the ground water
ofeven more doubtful validity).
And Joyce Munie, the head of the IEPA’s Bureau, of
Land Permit section, and a registered
professional engineer, also acknowledged that she
had insufficient information to
conclude that any constituent levels coming from the
12
Jersey Sanitation groundwater monitoring system were a result ofJersey Sanitation’s
activities.
Complainant, having the burden of proof in this enforcement case, cannot simply
infer that the contamination must be from Jersey Sanitation, particularly where its
own
witnesses acknowledge that that inference does not exist.
It should also
be noted that the IEPA’s premier witness,
Karen Nelson, is not now
currently engaged by the IEPA in
the capacity of professional geology, but instead her
job
duties concern setting
up training programs forthe entire agency throughout the state.
(TR. 284-286).
For several years at least, Ms.
Nelson has had no contact with field
geological concerns, apparently with the exception ofcontinuing
her dogged pursuit of
Jersey Sanitation.
Moreover, even before her transfer to a new job duty, her prior
experience before
this Board consisted of the affidavits she submitted
in support of
administrative citation complaints filed with this
Board.
~
AC 89-265 (Jan.
11,
1990);
AC 89-152 (Aug.
10,
1989); AC 89-66 (May
11,
1989); AC 89-39 (April
6,
1989); AC
89-9 (Feb. 23,
1989); AC 88-37 (June 16,
1988).
Simply put,
Ms. Nelson has precious
little experience with
the matters for which she has attempted to provide expert
testimony.
Moreover, even Ms. Nelson acknowledges (as she must) that the Jersey Sanitation
groundwater, including its groundwater monitoring well system as well as most of the
results she has compiled, were all presented to the Bureau of Land permit section and
considered by that section prior to the
1999 issuance of the certification of closure
effective September
1994.
Ms. Nelson had to
admit that the permit section has plenary
authority, at least in
comparison with her, over issues pertaining to
a landfill’s
13
groundwater and monitoring
system.
See TR. Of 1-13-04, at 90-92 (admitting that
groundwater monitoring system had been approved by permit section, which has
authority to do so).
Significantly, the head ofthe IEPA’s Bureau of Land permit section,
Joyce Munie, also testified in
this matter on behalf ofthe IEPA--but she was silent with
respect to
the issues championed Ms. Nelson, and specifically did
not testify that there
was anything wrong with Jersey Sanitation’s
groundwatermonitoring system (a system
which had been approved by her own staff), nor that anything about the groundwater
results compiled by Ms.
Nelson suggested any basis for concern or conclusion that Jersey
Sanitation had caused any
groundwater contamination.
Indeed, Ms. Munie,
once again,
said just the opposite—the data simply does not establish where the exceedances are
coming from.
The second
prong ofthe IEPA’s argument is
that the alleged section 12 violation
should be addressed by imposing the same groundwater evaluation protocol that had been
stricken by this Board
and the appellate court.
In point offact, even if it is concluded that
Jersey Sanitation is causing the constituent levels noted
in Ms. Nelson’s work product,
Jersey Sanitation’s permit application
(quoted above, from this Board’s permit appeal
ruling) defines the next step of investigation.
Indeed, the irony
here is that, as recognized
by Kenn Liss, pursuant to Jersey Sanitation’s
approach analyzing the groundwater
monitoring data for “trends” is an ongoing process and is not triggered by any
particular
constituent levels.
(See TR.
Of 1-13-04, at 7-29).
Instead, with virtually every pound of
sampling results Jersey Sanitation is to consider whether “a trend is believed
to be
developing.”
In the event that
such a determination is made, then additional
sampling is
called for, and a professional engineering firm is to be retained
to consider the next step.
14
This Board has all ready approved of this protocol (which, in turn, was approved by the
IEPA in approving this permit).
See TR. Of 1-13-04, at 26-27, in
which Kenn Liss
answers that compliance with the permit is the appropriate response in the event it is
determined a trend is developing.
This Board may recall
Mr. Liss’ participation on
behalfof the IEPA in the Tiered Approach Corrective Action Objectives (TACO), R. 97-
12(A) (April
17,
11997).
Similarly, there is virtually no justification for Complainant’s argument that the
whole groundwater monitoring system needs to
be revamped.
That system, of course,
was specifically approved by the Bureau ofLand’s permit section, and simply put, Ms.
Nelson has no authority to re-visit that section’s professional decisions, as she herself
acknowledges.
Moreover, she has completely
misunderstood the site’s geology.
~
TR.
Of 1-13-04, at
44-55,
and
97-101.’
Hence, no basis exists for Complainant’s repeated attempts to convince this
Board
to
impose on Jersey Sanitation the groundwater monitoring protocol proposed by the
IEPA, nor to penalize Jersey Sanitation for not doing things which this
Board, and the
appellate
court, have ruled to be beyond
IEPA’s power to
require.
ECONOMIC BENEFITS
Complainant has presented evidence through the testimony of Mr. Blake Harris,
and has argued in its brief, that Jersey Sanitation achieved an “economic benefit” in
the
amount of $25,233.53 “by not meeting financial assurance requirements for the subject
landfill” (Complainant’s brief at 136).
Mr. Harris claims that during the years
1994-
1998, Jersey Sanitation did
not have sufficient money
in its closure/post-closure care
fund.
Mr. Harris calculated the amount each year that the fund was in
arrears, and then
15
he
opined that, had
that money been invested, Jersey Sanitation would have reaped a
profit on the investment of $25,33.53.
~TR.
71-77.
Notably, Mr. Harris is not an accountant--he has never sat for the certified public
accountant exam, and in fact he does not even know the requirements to
sit for such an
examination.
(TR. 79-80).
The fallacy of Mr. Harris’ work is self-evident, even if Mr.
Harris himself cannot recognize it.
Mr. Harris assumed, in
calculating this supposed
“economic advantage,” that Jersey Sanitation had sufficient resources to pay the full
amount into the closure/post-closure fund, but
chose not to do so.
In point offact,
though, the unrebutted evidence in
this case reveals that every ç~jjf
of money that came
into the landfill, at least from
1989 on, was put toward paying not
only for proper
(meaning compliant with statutory and regulatory standards) landfill operations, but also
to fund the closure/post-closure account.
Indeed, not a cent ofthe revenue coming into
the landfill went into the owners’
pockets, and the facility was only operated for two
years after the current shareholders took control--just long
enough to bring the facility
into (or close to) compliance.
After it closed, no money came in.
It is
simply absurd to
suggest that Jersey Sanitation reaped any economic benefit
through this
ordeal.
Certainly that
is not the case with the current shareholders, whose
only benefit, if it could be called such, is that they no
longer have to
live next to a public
health hazard.
And for its own reasons, Complainant has not pursued Mr. Johnson for the
violations it has alleged.
Complainant’s other claim of economic benefit is even more absurd.
Specifically,
Complainant argues that, since a groundwater assessment of the type stricken by
the
Board in the previous permit appeal would cost $6,000 (as calculated by Jersey
16
Sanitation’s engineers), not having spent that $6,000 constitutes an “economic benefit.”
This suggestion is outrageous in light of this
Board’s and the appellate court’s
unambiguous ruling that the groundwater assessment is not properly part ofJersey
Sanitation’s post-closure care permit!
Complainant’s suggestion that Jersey Sanitation
should be penalized for not having done something that it did not lawfully have to do
is
nothing short offrivolous.
RCS LANDFILL
The only respondent in
this case is Jersey Sanitation.
However, for some reason
Complainant,
in its closing brief, has chosen to attempt to paint the neighboring landfill,
known as RCS
Inc., as somehow a part of Jersey Sanitation and
responsible for, liable
for, or at least a party to, the alleged violations at Jersey Sanitation.
These claims are
utterly ridiculous and preposterous.
First, although Complainant repeatedly raises issues pertaining to RCS and the
supposed involvement between RCS and Jersey Sanitation, Complainant cites to virtually
nothing in the record, aside from
speculation and conjecture, to
support these assertions.
Nothing in the record supports the hypothesized relationships between the shareholders
of Jersey Sanitation and those of RCS, norof the work performed at either facility.
While
it is true that the record reflects that RCS collects samples from the groundwater
monitoring
system at Jersey Sanitation and
assists in the performance of post-closure care
by Jersey Sanitation, one
would suppose that
to be
a
good thing, that has assisted in
assuring the continued post-closure care of the Jersey Sanitation facility.
Whether RCS
does such activities
voluntarily as a service to its
neighbors, or through some business
relationship, is neither of any
relevance to this proceeding nor to any extent defined
in
17
this record.
Complainant’s repeated claims about the nature ofthat relationship is
nothing more than pure and rank speculation, and should be stricken from this record.
Most particularly troubling is Complainant’s assertion that somehow RCS is
owned, managed, or controlled by Jersey Sanitation and/or its shareholders.
This is
particularly odious because Complainant is aware ofthe truth, but has attempted through
a vague record to misrepresent the facts.
The IEPA’s own documentation reveals this
assertion not to be true; according to its
own Non-Hazardous Solid
Waste Management
and Landfill Capacity in Illinois
(2002 Annual Report October 2003), RCS
Inc., the
owner and operator of RCS landfill in Jersey County, is a subsidiary ofAllied Waste
Industries, Inc.
~
id, at R5.8.
(A copy
is attached, but the entire document can be
viewed or downloaded at the IEPA’s website at:
www.epa.state.il.iis/land/Iandfill-
capacity/2002/index.html).
All references
to RCS, Inc.
by Complainant should be
stricken.
PROCEDURAL OB.IECTIONS
Complainant opened its
briefwith a lengthy objection about certain procedural
situations that arose during the hearing.
Complainant’s continuing argument about these
procedural issues is elevating these matters into a sideshow, probably in
order to deflect
attention from the weakness of Complainant’s groundwater case.
In any event, these
objections should fall upon
deaf ears; if anything, the hearing officer was overly lenient
in allowing Complainant to bring in surprise evidence in this
matter.
Complainant’s specific continued objections are to the continuance of the hearing
from September 24, 2003,
to the identification by Respondent of witnesses to respond to
brand new opinions tendered by Complainant just prior to first day of hearing, and
to the
lx
sur-rebuttal testimony of one of Respondent’s witnesses, in
response to another brand
new opinion first raised by Complainant during the continued hearing in January 2004.
Again, no justification exists for Complainant’s objections--Complainant got much more
than it was properly entitled
to
in this case, given Complainant’s own derelictions in
preparing its case.
During the course of raising its objections and arguing
in its brief, Complainant
suggests that somehow Respondent was remiss in its
trial preparation, and specifically
suggests that the continuance and
additional witnesses and surrebuttable
testimony came
about as a result of some failure on the part of Respondent.
This is a baseless assertion.
As
a starting point, of course,
Complainant has the burden ofproof in
this enforcement
action, not Respondent; it is unclear why Respondent would develop particular testimony
prior to an
indication by Complainant ofan
intention to pursue a theory.
More importantly, it is clear from this record that the pre-trial preparation
conducted by Respondent would not at all have avoided the situations, even had
Respondent done more discovery.
1
On September
19, 2003 (four days before the start of trial, and a Friday),
Complainant sent to Respondent a newly disclosed document, drafted by Karen Nelson,
for the first time, opining that certain “trends,” or “worsening,” was occurring with
-
respect to constituents in the groundwater at Jersey Sanitation.
Again, in
virtually no
previous document submitted by Complainant
had any of Complainant’s witnesses
contended that any such trend existed--to the contrary, prior to that time Complainant’s
‘Of course,
pre-trial strategy is the province of the lawyer involved, not the opposing
counsel.
In this
case, Respondent’s attorney is more than certain that the pre-trial steps
taken were
appropriate for this case.
19
argument was that
Respondent should investigate to see
if a trend existed!
(Indeed, even
at trial that was Joyce Munie’s testimony).
Of course, this Board’s ruling in the permit
appeal, followed by the appellate
court’s affirmance, should have dOne away with that
theory altogether.
Apparently Complainant realized that fact approximately one week
prior to trial,
and so dispatched to
Respondent this new evidence and
opinion.
Karen Nelson candidly admitted that she did not develop that evidence nor the
opinion until the day the document was sent to Respondent.
In light ofthat fact,
Complainant’s assertion that Respondent could have discovered this opinion in
discovery
is perplexing--unless all discovery is postponed
until virtually a couple of days prior to
trial, no amount of discovery will uncover opinions that are not even generated until just
before trial!!
Indeed, avoidance ofthis kind of situation is the reason
most courts now
require that cases essentially be ready for trial
30-60 days prior to the actual trial date.
Rather than seeking to
bar Complainant from using this new evidence (a
possibility discussed by the parties at hearing), Respondent took the reasonable
alternative position that it be given some opportunity
to
reasonably respond.
Because of
the lateness ofthe disclosure, counsel for Respondent had not had previous opportunity to
discuss the new opinion with any consulting or testifying
experts, and obviously
in light
ofthe ongoing trial, such consultation was not immediately available,
either.
However,
Respondent believed that consultation could take place
with a short continuance ofthe
final day of trial, and
the hearing officer agreed.
Continued hearing was thus set for
October 17, 2003, which was only
three weeks after the last date of hearing.
On Complainant’s motion, though, that October 17 hearing was continued to the
next available date (which turned out to be January 13, 2004).
The reason Complainant
20
wanted that delay was to have the opportunity to depose the two
witnesses identified by
Respondent as necessary to
respond to the new opinions advanced
by Ms.
Nelson.
Notably, this was an
accommodation available
to Complainant (who otherwise conducted
no depositions in
this case) that was not made available to Respondent upon production
of Ms. Nelson’s
new opinion.
No matter, Respondent agreed and Complainant deposed
the two new witnesses.
When hearing resumed on January
13, though, after presentation
of Respondent’s two
witnesses and their disclosed testimony, Complainant once again
called Ms. Nelson to the stand, and
she again stated yet another new opinion (this one
being that one of the ground water monitoring wells was improperly located in a sand
seam).
Again, candidly Ms. Nelson admitted that she had only
developed this brand new
opinion a month or less prior to this hearing date, (see TR.
Of 1-13-04, at
84-85),
and
notably no notice was ever provided by Complainant ofthe new opinion until Ms.
Nelson
once again took the witness stand.
In order to
level the playing field once again, the hearing officer allowed
Respondent to present some brief additional testimony to rebut this
brand new opinion;
anything less
would have completely deprived Respondent of any opportunity
to even
address this brand new position.
The hearing officer was clearly correct in allowing the
surrebuttal.
Again, in light of Complainant’s own failure to have timely and adequately
prepared its
case for trial--a trial in
which it bore the burdens of persuasion and of proof--
it is fortunate that the hearing officer was as tolerant ofthese new disclosures as she was.
Respondent, for its part, can live with the result, but if any relief is granted changing the
21
hearing officer orders, Respondent would
request that it be to completely
strike all new or
last-minute opinions tendered by Complainant.
CONCLUSION
As stated early in
this brief, Respondent acknowledges violations of the
Environmental Protection Act, and mitigating
circumstances go toward penalty, not
violation.
In this case, though, many of the claims of Complainant simply are
nonexistent.
Particularly is this true of Complainant’s “worst case” allegations, and
specifically those of “dread” groundwater contamination.
In point offact, no evidence
exists
to suggest that Jersey Sanitation is not following the requirements of its
permit, as
this Board
and the appellate court have determined.
Operational violations, and
violations of old, superceded permits, may have
existed, and as set forth above, in many cases Jersey Sanitation will concede those points.
However, the history of this site, the history ofpermitting
(including the appeal) and
enforcement process, and the history of environmental compliance, warrant a position of
no penalty at all.
The penalty provisions of the Environmental
Protection Act are not
intended for punitive purposes, but instead are intended
to be an aid in enforcement.
Jersey Sanitation at all times has voluntarily done all it could
to’ be in compliance (at least
following transfer of ownership in
1989).
Through Jersey Sanitation’s own self sacrifice,
diligence and hard work, it is in compliance and is heading toward finalization of its post-
closure care.
The site is no longer an open dump—no longer a breeding ground for rats,
flies and birds—but now is
properly closed and nearly finished with
its post-closure care
period.
No policy of the State of Illinois would be served by penalizing Jersey Sanitation
in this situation.
Accordingly, Jersey Sanitation requests this Board enter an
order
22
finding the existence of certain violations, but issuing no penalty.
Certainly this Board
should reject Complainant’s request of imposing the very same groundwater assessment
requirements that have‘already been rejected by this Board and the appellate court.
Respectfully submitted,
JERSEY SANITATION CORPORATION,
Respondent,
By its attorneys
HEDINGER LAW OFFICE
By:_______
Stephen
.
Hedinger
HEDINGER LAW OFFICE
2601
South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This document prepared on recycled paper
23
RCS
Landfill
County
Jersey
Municipality
Jerseyville
Location
1336 W.
Crystal
Lake Road
Location
‘~
618-498-2024
Hours of operation
Mon.-Fri.:
7 am.
-
5
p.m.
Wastes accepted
Municipal, nonhazardousspecial
Tipping fee
$35
per ton
Owner
RCS Inc.**
Operator
RCS Inc.**
Facility Facts
Identification number
0830250012
Design capacity, airspace cu.yds.
2,526,239
Total permittedlandfill area, acres
190.6
Permitted disposal area, acres
23.6
Highest permitted elevation, feet (msl)
662
-
Leachate monitoring stations
2
Groundwater monitoring wells
9
Methane collection system
None
Years remaining, estimated by landfill
28
Date/year to open-- Date/year to close
1-31-95
-
2031
Wastes
Received:
2000,
2001,
2002
TOTAL
WASTES ACCEPTED
MU’1’~OF~STATF
WASTES ACCEPTED
gate cu. yds
tons
tons/day
gatecu/yds.
tons
of total
2000
47,416
14,368
55
0
0
-
0
2001
82,331
24,949
96
0
0
0
2002
108,522
32,885
126
0
0
0
2000 State of Origin:
Illinois only
2001
State of Origin:
Illinois only
2002 State of Origin:
Illinois
only
Remaining Capacities:
Jan.
1, 2002
and Jan.
1, 2003
2002 certified
gate cu.
yds. (tons)
3,194,000
(968,000)
2003 certified
gatecu. yds. (tons)
3,073,000
(931,000)
Audits
and Inspections
Solid Waste Mgt. Fees paid in 2002
$0.00
-
Last audited by Illinois EPA
6-20-00, 6-19-01 &
4-25-02
Facility inspected by
Illinois EPA,
Springfield Regional Office
Fees were overpaid at one time, andacredit remains,
Contacts
Owner
Operator
RCS
Inc.**
RCS Inc.**
1336
W. Crystal
LakeRoad
1336 W.
Crystal Lake Road
Jerseyville, IL’
62052
Jerseyville, IL
62052
Contact:
Jay Ross
Contact:
Jay Ross
‘~
618-656-6912
~
618-656-6912
**A subsidiary of Allied Waste Industries Inc., 15880 N. Greenway-Hayden Loop, Suite
100, Scottsdale, AZ
85260
*
480-627-
2700.
Regional Office:
12976 St. Charles Rock Road, Bridgeton, MO
63044
*
314-739-5099
R5.8
‘•
Nonhazardous Solid
Waste Management and Landfill Capacityin Illinois: 2002
RECE~VED
CLERK’S OFFICE
OCT
272004
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~TATE
OF
ILLINOIS
Pollution
Control Board
JERSEY SANITATION CORPORATION,
)
-
an Illinois corporation,
)
)
Petitioner,
)
v.
)
PCB No. 97-2
)
(Enforcement)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
The
undersigned
certifies
that
an
original
and
niz’ie
copies
of
the
foregoing
Respondent’s Closing Brief were
served upon the Clerk of the Illinois Pollution Control
Board, and one
copy to each of the following parties of record
in this cause
by enclosing
same in
an envelope
addressed to:
Dorothy Gunn, Clerk
Jane McBride
Illinois Pollution Control Board
Office ofAttorney General
James R. Thompson Center
500 South Second Street
100 W.
Randolph St., Suite 11-500
Springfield, IL 62706
Chicago, IL
60601
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Avenue East
Springfield,
IL 62794
with
postage fully
prepaid, and
by
depositing said
~nvelope in
a U.S.
Post Office Mail
Box in
Springfield, Illinois before 7:00 p.m. on?2’ijOctober, 2004.
S
phen F. H~’dinger
‘~
Hedinger Law
Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This document prepared on recycled paper
