RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT 0 J 2005
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
vs.
)
PCB No. 03-191
)
(Enforcement)
COMMUNITY LANDFILL COMPANY,
)
INC., an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
)
)
Respondents.
)
NOTICE OF FILING
TO: Christopher Grant
Bradley Halloran
Environmental Bureau
Hearing Officer
Assistant Attorney General
Illinois Pollution Control Board
188 West Randolph Street
100 West Randolph
20th Floor
Suite 11
Chicago, Illinois 60601
Chicago, Illinois 60601
Charles F. Helsten
Scott Belt
Hinshaw & Culbertson, LLP
Scott Belt and Associates, PC
100 Park Avenue
105 East Main Street
P.O. Box 1389
Suite 206
Rockford, Illinois 61105-1389
Morris, Illinois 60450
PLEASE TAKE NOTICE that on October 3, 2005, the undersigned filed an original
and nine copies of RESPONDENT COMMUNITY LANDFILL COMPANY INC.’S MOTION
TO STRIKE PORTIONS OF COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT
with Ms. Dorothy Guim, Clerk of the Illinois Pollution Control Board, 100 W. Randolph Street,
Suite 11-500, Chicago, Illinois 60601, a copy of which is attached and hereby served upon you.
One ofthe Attorneys for Co
unity Landfill Co.
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD.
Attorney No. 37346
200 North LaSalle Street, Suite 2810
Chicago, Illinois 60610
(312) 642-4414
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
DLI
-
0 a 2305
PEOPLE OF THE
STATE
OF ILLINOIS, )
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
vs.
)
PCBNo. 03-191
)
(Enforcement)
COMMUNITY LANDFILL COMPANY,
)
INC., an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
)
)
Respondents.
)
RESPONDENT COMMUNITY LANDFILL COMPANY INC.’S MOTION TO
STRIKE
PORTIONS OF COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT
Respondents Community Landfill Company, Inc., (“CLC” or “Respondent”) by and
through its attorneys LaRose & Bosco, Ltd., and pursuant to 35 I1l.Adm. Code 101.500 and 735
ILCS 5/2-615, hereby moves the Illinois Pollution Control Board (“Board”) to strike portions of
Complainant’s Motion for Summary Judgment and in support thereof, states as follows:
FACTS
1.
On April 16, 2003, the Complainant filed its Complaint alleging that CLC
violated Section 21(d)(2) of the Act, 415 ILCS 5/21(d)(2) (2002) and 35 Ill.Adm. Code
Sections 811.700(f) and 811.712. (See Exhibit A, Complaint).
2.
This one-count Complaint alleged that that CLC had not obtained the proper
financial assurance as required by the Act. (Ex. A).
3.
This Complaint asked the Board to conduct a hearing, find CLC in violation,
order CLC to obtain financial assurance and assess a civil penalty. (Ex. A).
I
4.
On July 21, 2005, the Complainant filed its Motion for Summary Judgment on the
allegations set forth in its Complaint. (See Exhibit B, Motion for Summary Judgment, without
exhibits).
5.
In addition to requesting summary judgment on the initial allegations,
Complainant alleges for the first time in any pleading in this matter that CLC has continued
disposal operations at the Landfill. (See. Ex. B, page 4, Para. 7; page 8, para. 17). The
Complainant includes an affidavit from Mark Retzlaff.
6.
In addition to this allegation, the Complainant also asks the Board to order CLC
to “cease and desist from transporting and depositing any additional material at the Landfill.”
(See Ex. B, page 16, para. 38(3)). Like the additional allegations referenced in the above
paragraph, this additional request for relief is above and beyond the initial relief sought in the
Complaint.
7.
For the reasons stated in the Argument section of this Motion, CLC asks that this
Board strike the portions within the Complainant’s Motion for Summary Judgment that contain
new allegations and separate relief above and beyond those set forth in its initial Complaint.
ARGUMENT
In its Motion for Summary Judgment, Complainant launches a specific allegation of
dumping against CLC. This off-handed allegation marks the first such notice to CLC of any
further violations of the Act. The procedural rules require the Complainant to seek permission
from the Board before alleging new facts and allegations. See People of the State of Illinois v.
Petco Petroleum Corp., 2005 WL 1255250, page 3
(2005).
In any Motion to Amend a complaint,
the Complainant must also provide just and reasonable cause for the amendments. j4. By
2
circumventing the Board’s own procedural rules, the Complainant has denied CLC’s right to
notice and an opportunity to be heard on these new allegations.
Similarly, in its Motion for Summary Judgment, Complainant also asks for relief not
initially sought in its complaint. First, it asks for “interim relief in the form of an Order stopping
additional dumping.” Exhibit B, page 15, para. 38. Second, the Motion asks the Board to order
the CLC to “cease and desist from transporting and depositing any additional material at the
Landfill.” Id., page 16, para. 38(3). By requesting such relief, Complainant is asking for relief
above and beyond what was initially plead in their complaint, which contained allegations of
failure to provide financial assurance. According to the procedural rules, the party filing the
Motion for Summary Judgment “may move the Board for summary judgment for all or any part
of the relief sought.” 35 IL ADC 101.516(a). This additional requested relief is plainly different
than the relief initially plead.
Second, while the Board does have the power to issue a cease and desist order, it may
only do so upon issuing a final order. 415 ILCS 5/33(a) and (b). The Board may only issue such
final orders “after due consideration of the written and oral statements, the testimony and
arguments that shall be submitted at the hearing.” Id. To date, the Board has not had an
opportunity to make such considerations, making any cease and desist order premature.
WHEREFORE, for the reasons stated above, Respondents ask the Board to strike the
portions within the Complainant’s Motion for Summary Judgment that contain new allegations
and separate relief above and beyond those set forth in its initial Complaint.
3
Respectfully submitted,
Attorney for Community Landfil Company
Mark A. LaRose
Clarissa C. Grayson
LAROSE & BOSCO, LTD.
Attorney No. 37346
200 N. LaSalle Street, Suite 2810
Chicago Illinois 60601
(312) 642-4414
Fax (312) 642-0434
4
CERTIFICATE OF SERVICE
I, Clarissa C. Grayson, an attorney hereby certify that I served a copy of the foregoing
RESPONDENT COMMUNITY LANDFILL COMPANY INC.’S MOTION TO STRIKE
PORTIONS OF COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT by placing the
same in the United States Mail, first-class postage prepaid this 3rd day of October 2005,
addressed as follows:
Mr. Christopher Grant
Mr. Scott Belt
Environmental Bureau
Scott Belt and Associates, PC
Assistant Attorney General
105 East Main Street
188 West Randolph Street
Suite 206
20th Floor
Morris, Illinois 60450
Chicago, Illinois 60601
Mr. Bradley Halloran
Mr. Charles F. Helsten
Hearing Officer
Hinshaw & Culbertson, LLP
Illinois Pollution Control Board
100 Park Avenue
100 West Randolph
P.O. Box 1389
Suite Ii
Rockford, Illinois 61105-1389
Chicago, Illinois 60601
One of the Attorneys for Commu ity Landfill Co.
Mark A. LaRose
Clarissa C. Grayson
LaRose & Bosco, Ltd.
Attorney No. 37346
200 N. LaSalle Street
Suite 2810
Chicago, Illinois 60610
(312) 642-4414
Exhibit A
ft
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD RECEIVED
CL~RKS
OFFTCR
PEOPLE OF THE STATE OF ILLINOIS,
APR 162003
Complainant,
STATE OP ILLINOIS
PCB No.
o;- Hi
Pollution
Control Board
(Enforcement)
COMMUNITY LANDFILL COMPANY, INC.,
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
COMPLAINT
Complainant, PEOPLE OF THE STAtE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, complains of
Respondents, COMMUNITY LANDFILL COMPANY, INC., an Illinois
corporatioi~, and the CITY OF MORRIS, an Illinois municipal
corporation, as follows:
COUNT I
FAILURE TO PROVIDE ADEQUAfl FINANCIAL ASSURANCE
1. This complaint is brought by LISA MADIGAN, Attorney
General of the State of Illinois, on her own motion and at the
request of the Illinois Environmental Protection Agency
(“Illinois EPA”) pursuant to Section 31 of the Eniiiironmental
Protection Act, (“Act”), 415 ILCS 5/31 (2002)
2. The Illinois EPA is an administrative agency of the
State of Illinois, created pursuant to Section 4 of the -Act, 415
ILCS 5/4 (2002)
,
and is charged
inter
alia, with the duty of
1
EXHIBIT
L~
enforcing the Act.
3. Respondent CITY OF MORRIS (“City”), is an Illinpis
municipal corporation, organized and operating according to the
laws of the State of Illinois, and located in Grun~yCounty,
Illinois. The City is the owner of the Morris Community
Landfill, a special waste. and municipal solid waste landfill
located at 1501 Athley Road, Morris, Grundy County, Illinois.
4. The Morris Community Landfill is approximately 119
acres in area, and is divided into two parcels, designated parcel
“A”, consisting of approximately 55 acres, and parcel “B”
consisting of approximately 64 acres.
S. Respondent COMMUNITY LANDFILL COMPANY, INC. (“CLC”) is
an Illinois corporation, duly authorized to transact business in
the State of Illinois. CLC is the operator of the Morris
Community Landfill, and manages day-to-day operations of both
parcels at that site.
6. From at least June 1, 2000 until the time of filing
this Complaint, Respondents have arranged for and supervised the
deposit of waste, including municipal solid waste, garbage, and
special waste, into waste cells at the Morris Community Landfill.
7. As owners and operators of the Morris Community
Landfill, the City and CLC are required by Section 21.1(d) of the
Act, 415 ILCS 5/21.1(d) (2002), to apply for and obtain landfill
permits, including operating, significant modification, and other
2
municipal solid \‘iaste permits, from Illinois EPA.
8. On August 4, 2000, Respondents were issued Significant
Modification Permit Numbers 2000-155-LFM, covering Parcel A, and
2000-l56-LFM, bo’iering Parcel B. On June 29, 2001, the
Respondents were issued Permit Modification No. 2 for parcels A &
B. On January 8, 2002, the Respondents were issued Permit
Modification No. 3 for Parcel A.
9. From at least June 1, 2000 until the time of filing
this Complaint, Respondents have conducted disposal operations on
parcels “A” and “B” of the Morris Community Landfill. During
this period, the sole assurance of closure and post closure costs
provided by Respondents to Illinois EPA has been three separate
performance bonds underwritten by the FrontierInsurance Company.
10. On June 1, 2000, the United States Treasury Department
removed Frontier Insurance. Company from the compilation of
acceptable surety companies listed in the United States
Department of Treasury publication “Circular 570”.
11. At no time from June 1,2000 uz~tilthe filing of this
complaint, has Frontier Insurance Company been added back to the
“Circular 570” list of. acceptable surety companies.
12. Section 21 of the Act, 415 ILCS 5/21 (2002) provides,
in pertinent part, as follows:
No person Shall:
***
3
(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.
- *
*
*
13. Pursuant to authority granted by the Act, the Illinois
Pollution Control Board has promulgated regulAtions requiring and
regulating closure and post-closure financial assurance for
municipal solid waste landfills. These regulations are codified
at 35 Ill. Adm. Co~.e, Subtitle G, Subchapter I, Subpart G (“Board
Financial Assurance Regulations”)
14. Section 811.700 of the ~oard Financial Assurance
Regulations, 35 Ill. Adm. Code 811.700, provides, in pertinent
part, as follows:
***
(f) On or after April 9, 1997, no petson, other than
the State of Illinois, its agencies and
institutions, shall conduct any disposal
operations at an MSWLF unit that requires a permit
under subsection (d) of section 21.1 of the Act,
unless that person complies with the financial
assurance requirements of this Part.
15. Section 811.712 of the of the Board Financial Assurance
regulations, 35 Ill. Adm. Code 811.712, provides, in pertinent
part, as follows:
***
(b) the surety. company issuing the Bond shall be
licenced to transact the business of insurance by
4
the Department of Insurance, pursuant to the
Illinois Insurance Code 215 ILCS S, or at a
minimum the insurer must be licensed to transact
the business of insurance or approved to provide
insurance as an excess or surplus lines insurer by
the Insurance Department of one or more states,
•
and approved by the U.S. Department of the
•
Treasury as an acceptable surety. Section
21.1(a.5) of the Act, 415 ILCS 5/21.1(a.5))
BOARD NOTE: The U.S. Department of the Treasury
lists acceptable sureties in its Circular 570.
16. Section 3.26 of the Act, 415 ILCS 5/3.26 (2002),
provides the following definition:
“PERSON” is an individual, partnership,. co-
partnership, firm, company, limited liability
company, corporation, association, joint
stock company, trust, political subdivision,
state agency, or any other legal entity, or
their legal representative, agent or assigns.
17. Respondent CLC, an Illinois corporation, and Respondent
City of Morris, a political subdivision, are “persons” as that
term is defined section 3.26 of the Act, 415 ILCS 5/3.26 (2002).
18. Section 3.85 of the Act, 415 ILCS 5/3.85 (2002),
provides, as follows:
“Municipal solid Waste Landfill Unit” or MSWLF unit”
means a contiguous area of land or an excavation that
receives household waste, and that is not a lahd
application unit, surface impoundment, injection well,
or any pile of noncontainerized accumulations of solid,
nonflowing waste that is used for treatment or storage.
A MSWLF unit may also receive other typeâ of RCRA
Subtitle D wastes, such as commercial solid waste,
nonhazardous sludge, small quantity generator waste and
industrial solid waste. Such a landfill may be
publicly or privately owned. A MSWLF unit may be a new
MSWLF unit, an existing MSWLF unit, or a lateral
expansion. Asanitary landfill is subject to
-
regulation as a MSWLF unit if it receives household
5
waste.
19. Parcels “A” and “B” of The Morris Community Landfill
are “Municipal Solid Waste Landfill unitts)”, and. “MSWLF units~”
as those terms are defined in Section 3.85 of the Act, 415 ILCS
5/3.85 (2002).
20.. Section 3.53 of the Act, 415 ILCS 5/3.53 (2002),
provides, in pertinent part, as follows:
“WASTE” means any garbage.. .or any other discarded
material, including any solid, liquid, semi-solid, or
contained gaseous material resulting from industrial,
•
commercial, mining and agricultural operations, and
from community activities.
21. Section 3.08 of the Act, 415 ILCS 5/3.08 (2002),
prdvides, as follows:
“Disposal” means the -discharge, deposit,
injection, dumping, spilling, leaking or
- . •
placing of any waste or hazardous waste into
or on any land or water or into any well so
that such waste or hazardous waste or any
22. From at least June 1, 2000 until the time of filing
this complaint, Respondents arranged for and supervised the
deposit of special waste, municipal solid waste, garba~eand
other waste at the Morris Community Landfill. Respondents
thereby conducted a “waste disposal operation” as those terms are
defined in the Act.
.
.
23. From June 1, 2000 until the time of filing this
•complaint, Respondents hate conducted disposal operations at both
parcel “A” and parcel “B-” of the Morris Community Landfill, with
6
closure and poCt-closure financial assurance solely in the form
of three perfo±mance bonds from F~rontier Insurance Company, a
company not listed in United Stated Department of the Treasury
“Circular 570”, and therefore not meeting the requirements of 35
Ill. Adm. Code 811.712.
Respondents have thereby violated
Sections 811.700(f) and 811.712 of the Board Financial Assurance
RegulatiOns,
35 Ill. Mm. Code 811.700(f) and 811.712, and have
thereby also violated Section 21(d) (2) of the Act~
415 ILCS
5/21(d) (2) (2002).
.
-
WHEREFORE, Complainant, PEOPLE OF T~E STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the
Respondents,
COMMUNITY LANDFILL COMPANY, INC. and the CITY OF
MORRIS on Count I:
1. Authorizing a hearing in this matter at which time the
Respondents will be required to answer the allegations herein;
2.
Finding that the Respondents have violated Section
21(d) (2) of the Act, 35 Ill. Adm. Code 811.700(f), and 35 Ill.
Adm. Code
811.712;
3. Ordering the Respondents to immediately obtain, and
provide to Illinois EPA, landfill closure and post-closure
financial assurance meeting the requirements of the Board
Financial Assurance regulations;
:_~4.
Orde±ing the Respondents
to cease and desist from any
further ‘~io1ations of Section 21(d) (2)of the Act, 35 Ill.. Adm.
7
Code 811.700(f), and 35 Ill. Adm. Code 811.712;
5. Assessing a civil penalty of Fifty Thousand Dollars
($50,000.00) against the Respondents for each violation of the
Act and pertinent~regulations,
and an additional civil penalty of
Ten Thousand Dollars ($10,000.00) for each day of violation;
6.
Ordering the Respondents to pay all costs, pursuant to
Section 42(f) of the Act, including attorney, expert witness, and
consultant fees expended by the State in its pursuit of this
action; and
7. Granting such other relief as the Board deems
appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
~
.
• RO
MA~.IE CAZEAtJ Chi
Environmen
Bureau
Assistant Attorney Genera-i
8
OF COUNSEL
CHRISTOPHER
GRANT
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.2Oth Floor
Chicago, Illinois 60501
(312) 814—5388
9
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
•
vs.
)
PCB No.
(Enforcement)
COMMUNITY LANDFILL COMPANY, INC.,
)
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
•
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused
to
be
served this 16th day of April, 2003, the foregoing
Complaint and Notice
of
Filing upon the persons listed below by
certified mail, and addressed to:
FOR COI~R4tJNITY LANDFILL COMPANY, INC.
Mr.
Mark La Rose, Registered Agent
734 N. Wells Street
Chibago, Illinois 60610
FOR CITY OF MORRIS
The Honorable Richard Kopczick, Mayor
320 Wauponsee Street
Morris, Illinois 60450
CHRISTOPHER GRANT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
•
vs.
)
PCB No.
(Enforcement)
COMMUNITY LANDFILL COMPANY, INC.,
an Illinois corporation, and
the CITY OF MORRIS, an Illinois
municipal corporation,
Respondents.
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused
to be served this 16th day of April, 2003, the foregoing
Complaint and Notice of Filing upon the persons listed below by
certified mail, and addressed to:
FOP COfrR~’ITJNITYLANDFILL COMPANY, INC.
Mr. Mark La Rose, Registered Agent
734 N. Wells Street
•
Chicago, Illinois 60610
• •
FOR CITY OF MORRIS
The Honorable Richard Kopczick, Mayor
320 Wauponsee Street
Morris, Illinois 60450
CHRISTOPHER GRANT
Exhibit B
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLEComplainant,OF THE
••
STATE OFILLINOIS,
• • •
)
• •
•
n
CLER~
iu~
CEVED
212005
0~
COMMUNITY
•
Vs.LANDFILL
• • •
COMPANY, INC.,
))
PCB(Enforcement-Land)No. 03-
~~uti0flTATE OF
ConttO~BoaXd
an Illinois corporation, and
the CITY OF MORRIS, an Ill1noi~
mUnicipal corporation,
• )
-
Respondents,
•
•
•
COMPLAINANT’
S MOTION FOR SU~ARY JUD~EMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS,
through its attorhey, LISA MADIGAN, Attorney General of ~he State
of Il1inois~. and requests that the Illinois. Pollution Control
Board (“Board”) grant, pursuant to 35 Iii. Adm. Code 101.516,
summary judgment in favor of Complainant and against the
Respondents, COMMUNITY LANDFILL COMPANY, and the CITY OF- MORRIS.
In support thereof, Complainant states as follows:
I. IMTROOUCTIOtt/BACKGROUND
1. OnApril 16, 2003, the State filed its Complaint, on
referral from the Illinois Environmental Protection Agency
pursuant to Section 31 of the Illinois Environmental Protection
Act (“Act”)
,
415 ILCS 5/31 (2002) The State alleges that the
Respondents violated Section 21(d)(2) of the AcE, 415 ILCS
5/?1(d) (2) (2002), and 35 Ill. Adm. Code Sections 811.700 (f)
and 811.712, through failure to provide adequate financial
—1—
EXHIBTT
assurance for diosure/post-closure
activities at the Morris
Community Landfill, Morris, Grund~ County IllinOis (“Landfill”)
Financial assurance is required by 35 Ill. Adm. Code, Part 811,
Subpart G.
• •
2.
Upon application by the Respondents, on August
4,
2000
Illinois EPA issued two significant modification permits to the
Respondents, 2000-155-LFM for Parcel A Exhibit A, and 2000-156-
LFM for Parcel B Exhibit B
.
The Respondents subsequently
obtained various modifications to the Permits.
Both Permits (and
modifications thereto) were issued to Respondent City of Morris
(“Norris”), as owner, and Respondent Community Landfill Company
(“CLC”)
,
as operator.
Pursuant to these permits, and the
provisions of the Board’slandfill
regulations,
the Respondents
were tO provide a total of $17,427,366.00 in compliant financial
assurance, beginning in 2000. See Exhibit A, p. 45, par. 6,
Exhibit B, p. 33, par. 6.
•
-
• 3.
Section 21.1 of the Act requires “persons” conducting
waste dispoEal operations pursuant to an Illinois EPA-issued
permit to post
“..
.a performance bond, or other security for the
purpose of insuring closure of the site and post closure care in
‘accordance with thiâ Act and regulations adopted thereunder.
. .
415 ILCS 5/21.1 (2002)
.
• -
•
•
•4.~ Closure/post closure financial assurance must meet the
provisions of 35 Ill. Adm. Co@e 811.700, as further described by
-2-
L
•
-•
35 Ill.
Adm.
Code Sections 811.706, 811.710 through 811.717, and
811.719-720.
These regulations, and the Act, prohibit any person
from conducting waste disposal operations without adequate,
compliant financial assurance, i.e. financial assurance meeting
the specific requinments of these Board regulations.
5. The Respondentâ have failed to comply with the
conditions of their permits and the pertinent regulations.
Instead, in 2000, the Respondents provided Illinois EPA with
three surety bonds issued by Frontier Insurance Company, an
inadequate surety.
Copies of these bonds are attached hereto as
Exhibit C.
6.
Following denial of subsequent permit applications due
to inadequate financial assurance, the Respondents fully
litigated the issue of whether the Frontier Bonds met regulatory
requirements. In
Community Landfill Company and City of Morris
V.
Illinois EPA,
PCB 01-48/01-49 (Consolidated) (April
5, 2001,
slip op., at
29) Exhibit D, the Board found that the amount of
financial assurance to be maintained by the Respondents was
$17,427,366.00. In
Community Landfill Company and City of Morris
V.
Illinois
EPA,PCB 01-170 (December 6, 2001, slip op. at
22) Exhibit E, the Board found that the Frontier Bonds 4id not
meet the requirements of 35 Ill. Adm. Code 811.712(b).
The Board
upheld the denial of the permit applications due to the
Respondents’ failure to provide adequate, compliant financial
-3-
assurance.
On appeal, the Appellate Court affirmed the Board’s
finding. 331 Iii. App. 3d 1056 Exhibit F.
The Illinois Supreme
Court subsequently denied the Respondents’ Petition for ~eave to
Appeal.
202. Iii. 2d 600 (Dec. 5, 2002).
7. As the attached Exhibits demonstrate, the Respondents
have failed to provide
~
financial assurance meeting the
requirements of the Act or their permits.
However, they have
continued operations, specifically waste dispo~a1 •in parcel
A at
the Landfill, without financial assurance.
8.
This Motion seeks an order finding the Respondents in
violation of the pertinent regulations and the Act; ordering the
Respondents to stop disposal of any material at the Site until
they comply with the Act, Board regulations,
and relevant
Permits; ordering the Respondents to immediately provide
financial assurance meeting the requirements of the Act, and
relevant permits; and setting a date for hearing on the issue of
Civil Penalty..
II.
PRELIMINARY MATTERS
9.
Complainant alleges that the Respondents have violated
35 Ill. Adm. Code Sections 811.700(f) and 811.712.
Section
21(d) (2) of the Act, 415 ILCS 5/~l(d)(2) (2002), provides that
violation of these regulations are violations of the Act as well.
10. The pertinent sections of the Act and regulations
provide:
.
.
.
-4-
415 ILCS 5/21(d) (2) (2002)
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..
*
*
•
*
35
Ill. Adm. Code 811.700(f)
*
*
*
(f) On or after April 9, 1997, no person, other than
the State of Illinois,
its agencies and
institutions,
shall conduct any disposal
operations at an MSWLF unit that requires a permit
under subsection (d) of section 21.1 of the Act,
unless that person complies with the financial
assurance requirements of this Part.
35
Ill. Adm. Code 811.712
***
(b)
the surety company issuing the Bond shall be
licenced to transact the business of insurance by
the Department of Insurance, pursuant to the
Illinois Insurance Code 215 ILCS 5)
,
or at a
minimum the insurer must be licensed to transact
the business of insurance or approved to provide
insurance as an excess or surplus lines insurer by
the Insurance Department of one or more states,
and approved by the U.S. Department of the
Treasury as an acceptable surety.
Section
21.l(a.5) of the Act, 415 ILCS 5/2l.l(a.5)
-5-
BOARD NOTE:. The U.S. Department of the Treasury
lists acceptable sureties in its Circular
570.
11.
•In its Answer, CLC admits that it is a “person”, as
defined.
The City of Morris denies that it is a “person” as
that term is used in the Act.
However, Respondent Morris admits
that itis
anIllinois
municipal corporation (Morris Answer,
par.3)
.
Section 3.315 of •the Act, 415 ILCS 5/3.315
(2002),
defines “person” as follows:
“PERSON” is an individual, partnership, co-
partnership, firm, company, limited liability
company, corporation, assQciation, joint
stock company, trust, political subdivision,
state .agency, or any other legal entity, or
their legal representative,
agent or assigns.
12. As a municipal corporation, the City
pf Morris is a
‘political
subdivisiOn’, and therefore a “person”.
The City of
Morris’ denial of this allegation is frivolous.
13.. Respondent CLC admits thatit was issued.the following
permitè: Significant Modification Permits No. 2000-155-LFM and
2000-lSG-LFN on August 4, 2000, Permit Modification No. 2 on J~zne
29, 2001, and Permit Modification No. 3
oh January 8, 2002 CLC
Answer, par. 8
.
However, Respondent Morris denies that it was
issued these permits ftlorris Answer, par. 8)
.
Again, Respondent
Morris’ denial is frivolous.
ExhibitS A and .R clearly indicate
that the City was Permittee as ‘owner’
.
See also: Affidavit of
Brian White Exhibit 0, par. 7-B regarding subsequent permits.
Moreover, Respondent Morris vigorously litigated the denial of
-6-
its subsequent permit applications in Case No; PCB 01-170, and
the Appellate Court.
Respondent Morris’ standing in these cases
was as existing permit hol.der, and applicant for the (denied)
modifications.
There is no genuine question that Respondent
Morris is Permittee under all relevant Landfill permits.
14.
Section 3.285 of the Act, 415 ILCS 5/3.285 (2002),
provides, as follows:
“Municipal Solid Waste Landfill Unit” or MSWLF unit”
means a contiguous area of land or an excavation that
receives household waste, and that is not a land
application unit, surface impoundment, injection well,
or any pile of noncontainerized accumulations of solid,
nonflowing waste that is used for treatment or storage.
A MSWLF unit may alsp receive other types of RCRA
Subtitle D wastes, such as commercial solid waste,
nonhazardous sludge, small quantity generator waste and
industrial solid waste.
Such a landfill may be
publicly or privately owned. A MSWLF unit may be a new
MSWLF unit; an existing MSWLF unit, or a lateral
expansion.
A sanitary landfill is subject to
regulation as a MSWLF unit if it receives household
waste.
15. Both Respondents admit. that parcels A & B of the Morris
Community Landfill are
MSWLF units. Therefore the provisions of
35 Ill.
Adrn. Code 811.700(f) apply to the entire Morris Commt4nity
Landfill.
III. THE RESPONDENTS HAVE CONDUCTED A WASTE DISPOSAL OPERATION
a. Activities of Both Respondents
16. Although the term ‘waste disposal operation’ is not
defined in the Act, the facts show that both Respondents are
‘conducting a wastedisposal operation’ at the Landfill, giving
7
that term its common meaning.
First, both Respondents were
issued permits for
solid waste disposal
at the landfill.
This
fact alone, as a matter of law, demonstrates that both
Respondents were conducting a waste disposal operation..
In
addition, as shown by Exhibit H, the Respondents submitted
reports acknowledging the receipt of solid waste at the Landfill.
These reports were signed, under oath, by the Mayor of the City
of Morris and the President of CLC, and indicate dumping activity
during the years 2000, 2001, and 2002. Although the Respondents
have failed to submit these reports for subsequent years See:
Affidavit of Ellen Robinson, Exhibit fl, par. 7J, as shown by the
Affidavit of Mark Retzlaff Exhibit I, par. 11), waste disposal
at the Landfill has continued, in parcel A, through at least May
18, 2005.
b. Activities of Respondent Conmiunity Landfill Company
17. Respondent CLC admits that it is the operator, and that
it manages day-to-day operations at the Landfill CLC Answer,
par. 5
.
It also admits that it was issued Significant
Modification Permits No. 2000-155-LFM, 2000-156-LFM, and
modifications issued on June 29, 2001 and January 8, 2002 ~Q
Answer, par. 8
.
As shown by the Affidavit of Mark Retzlaff
Exhibit I, CLC employee James Pelnarsh Sr. continues to manage
operations at the Site. In October, 2004, Retzlaff noted dumping
of general debris, andreviewed records of substantial dumping of
-8-
petroleum-contaminated soil. Exhibit I, par. 7-9. On May 19,
2005, James Pelnarsh Sr. admitted to additional dumping the
previous day. Exhibit I, par. 11
c.
Activities of Respondent City of Morris
18. Not onlydid the City apply for the relevant permits,
it provided, as principal, a Frontier Insurance Company ~urety
bond in the sum of $10,081,630.00 Exhibit C. Also, the City of
Morris was a Petitioner in the two Laxidfill Permit appeals, and
was co-appellant in the appeal of the Boards’ finding in PCB 01-
170.
19. Respondent Morris has also profited from continued
disposal at the Site. As shown by excerpts from the deposition
transcript of the City’s representative deponent, Mr. John Enger
Exhibit JJ
,
the City receives a royalty for waste dumped at the
Landfill, free. or reduced dumping fees, and (formerly) royalties
from operation of a landfill gas-to-energy plant. Exhibit J, at
p.
21-22.
20. The City of Morris’ active involvement in permitting
for solid ~vaste disposal, bonding the landfill, and collecting
royalties for waste dumping, shows that it was, along with CLC,
‘conducting a waste disposal operation’
.
.
IV. COMPLAINANT IS ENTITLED TO SUMMARY JUDGMENT
21. Section 101.516 of the Board Procedural Rules, 35 Ill.
Adm. Code 101.516, provides, mT pertinent part, as follows:
-9-
***
b) If the record, including pleadings, depositions and
admissions on file, together with any affidavits, show
that there is no genuine issue of material fact, and
the moving party is entitled to judgment as a matter of
law, the Board will enter summary judgment.
22.
The affidavits, depositions, prior Board and court
rulings, and the pleadings in this matter clearly indicate that
the Respondents have failed to provide the required financial
assurance for the Morris Community Landfill, in violation of the
Board’s financial assurance regulations,
and the relevant
landfill permits.
a.
.
The Respondents have violated 35 Iii. Adm. Code 81.1.712
23.
Section 811.712 of the Board regulations requires that
Performance Bonds used as financial assurance be listed in the
U.S. Department of the Treasury ‘Circular 570.
24. The Respondents noncompliance with 811.712 has
previously been decided. In PCB 01-170, the Board found that the
Frontier Bonds submitted by Respondents did not meet the
requirement of this Section. Exhibit E, at 14. The Appellate
Court, Third District upheld the Board’s determination. Exhibit
E~
at 4.
.
25. The principal of Collateral Estoppel should be applied
in our case. Collateral Estoppel applies whe~e:
1)
the issue decided in the prior adjudication is identical
2)
withtherethewas onea
finalpresentedjudgementin
theoninstantthe
meritsmatter;in the prior
adjudication; arid
3) The party against whom estoppel is asserted was a party
or a party in privity with a party to the prior
adjudication.
people
v.
Community Landfill Co.
et al. PCB 03-191, slip op at 4-
5 (October 16, 2003)
,
(citing
ESC
Watts, Inc. v. IEPA, PCB 96-191
and 97-210, slip op. at 2-3 (July 23, 1998))
26. The issue of whether the Frontier Bonds were compliant,
decided by the Board in FOB 01-170, is identical to that in our
case-the Bonds are the same. This issue has already reached a
final adjudication, and was reviewed on appeal. The Respondents
were Petitioners in PCB 01-170, and fully litigated the issue.
27. Although courts closely scrutinize the application of
‘offensive collateral estoppel’, its use is appropriate in this
case. Courts do not favor offensive collateral estoppel where:
1) it may encourage potential plaintiffs to ‘wait and see’
rather than joining in earlier litigation; and/or
2.) where the prior litigation was comparatively minor, and
a Defendant did not have incentive to fully litigate an
issue.
American
Family Mutual Insurance Co. v. Savickas1
193 Ill.
2d 378, 390 (2000)
28
However, neither of these factors is present in this
case. First, the prior litigation involved the same parties.
The State qould not ‘wait and see’ for a favorable-result:
Respondents’ permit appeal in PCB 01-1703 was thrust upon it.
Also, the Respondents, seeking to operate new sections of the
landfill, had the incentive to vigorously litigate the legitimacy
-11-
of their own bonds. In fact the Respondents appealed to Board’s
ruling to Appellate Court, and sought leave to appeal to the
Illinois Supreme Court.
There is no ui~fairness to the
Respondents from applying offensive collateral estopp9l, and its
use is reasonable-there is no reason to further litigate, the
‘legitimacy’ of the Frontier Bonds.
29. Moreover, as shown by the Affidavit of Brian White
Exhibit G, par. 11, Frontier Insurance Company is not listed on
Circular 570. Therefore, as a matter of law, the Performance
Bonds provided do not comply with either Section 811.712 or the
‘Respondents’ permits.
30. By providing noncompliant performance bonds as
financial assurance for closure/post closure of the Landfill, the
Respondents have viOlated 35 Ill. Adm. Code 811.712. There is no
genuine question of material fact, án~the Board should find that
Plaintiff is entitled to judgment on thiè issue as a matter cf
law.
b. The Respondents Violated, and Continue to Violate, 35
Ill. Adrt. Code 811.700(f)by ~‘ai1ing to Provide
Adequate Financial Assurance
31. Section 811.700(f) of the Board regulations, 35 Ill.
Adm. Code 811.700(f), prohibits disposal operations at Municipal
Solid Waste Landfills without compliant financial assurance.
32. The Board and the appellate court have previously
determined that the Frontier Bonds did not meet the requirements
-12-
of 35 Iii. Adm. Code 811.712(b); the Board does not need to
revisit this issue. However, the Respondents also have failed to
substitute or provide any adequate financial assurance, even
though they have known since no later than December 5, 2002 (when
the Illinois SuprerneCourt denied Respondents’ Petition), that
the Frontier Bohds. did not satisfy their financial assurance
obligations.
33. 35~Ill. Adm. Code 811.706 lists ten alternative
mechanisms for providing acceptable financial assurance,
including,
inter alia,
compliant performance bonds, payment
bonds, insurance policies, and local government guarantees. As
shown by the Affidavit of Brian White, neither Respondent has
arranged for or submitted closure/post closure financial
assurance conforming with
~
of these ten mechanisms Exhibit G,
par. 12. The Respondents do not now have.~ adequate,
compliant financial assurance for closure/post closure of parcels
A & B of the’Landfill. This fact is indisputable.
34. In addition, the Respondents have aLso failed to
provide annual updates of closure/post-closure costs, or even to
annually adjust estimates for inf1atio~as required by 35 Ill.
Mm. Code 811.701(c) ExhibitG, par. 14-151, and their ‘Permits.
35.,
By conducting waste disposal operations at the Landfill
after August 4, .2000, without providing financial assurance
according to the requirements of 35 Ill. Adm. Code Sections
-13-
811.700 and 8~l.706,the Respondents have violated 35 Ill. Mm.
Code 811.700(f). There is no genuine issue of material fact, and
Complainant is entitled to judgment as a matter of law.
c. Violation of 415 ILCS 5/23. (d) (2).
36. Section 21(d).(2) of the Act provides that “no person
shall.. .conduct any waste-storage, waste-treatment, or waste-
disposal operations.. .in violation of the Board’s regulations and
standards.
. . .“
As shown above, the Respondents have conducted,
and continue to conduct’ waste dispOsal operations at the
Landfill, while violating 35 Ill, Adm. Code 811.712 and
811.700(f). The Respondents have thereby also violated Section
21(d) (2) of the Act, 415 ILCS 5/21(d) (2) (2002). There is no
genuine issue of material fact and Complainant is entitled to
judgment as a tuatter of law.
d. The Respondents’ Violations were Wilful, Knowing, and
Repeated
37. The Respondents have viOlated the financial assurance
regulations, and their Permits, since at least August 4, 2000.
Since no later than December 5, 2O02, when the Illinois Supreme
Court denied their Petition for Leave to Appeal, the Respondents
have been fully aware that the Frontier Insurance Company bonds
were noncompliant, and thus insufficient. Yet the Respond!ents
have failed to provide any other compliant financial assurance
for closure/post-closure of the landfill to the date of filing
this Motion for Summary Judgment, even though, as shown by the
-14-
Landfill Capacity Reports EExhibit H
,
and the Affidavit, of Mark
Retzlaff Exhibit I, they have continued waste disposal
operations. The Respondents’ failure to provide compliant
financial assurance, while continuing waste disposal operations,
constitutes wilful~ knowing, and repeated violations of the Act
and pertinent regulations.
V. REQUESTED RELIEF
38. Although there should be no doubt regarding the
Respondents’ violations of the financial assurance violations.,
discovery in this case continues on issues related to civil
penalty, specifically the economic benefit accruing to the
Respondents from these violations. Complainant believes that a
hearing on the sole issue of civil penalty will be necessary once
discovery closes on September 25, 2005. However there is no
reason to delay the Board’s decision on the Respondents’
liability, or to delay interim relief in the form of an Order
stopping additional dumping and requiring the Respondents to
immediately comply with the closure/post-closure financial
assurance regulations. Therefore, Complainant respectfully
requests that the Board order interim relief in the form of the
following:
1. A finding that the Respondents have violated 4l~ ILCS
5/21(d) (2) (2002), and 35 Ill. Adm. Code Sections 811.700(f) and
811.73.2;
15
.
.
2. A finding that the Respondents’ violations were wilful,
knowing, and/or repeated;
3. Ordering the Respondents to cease and desist from
transporting and depositing any additional material at the
Landfill until they are in full compliance with their Permits,
and the Board’s financial assurance regulations;
4.
Requiring the Respondents to immediately provide
financial assurance as required by the Act, Part 811, Subpart G
of .the Board sOlid waste regulations, and the Respondents’
permits;
5.
Requiring the Respondents to update the
closure/postclosure costs in accordance with Permits No. 2000-
15S-LFM, 2000-l56-LFM and modifications thereto;
-
6.
Ordering the Respondents to initiate closure of parcels
A & B of the Landfill; and
7. Setting a date.for hearing on the issue of civil
penalty.
WHEREFORE, Complainant, PEOPLE OF THE SThTE OF ILLINOIS,
respectfully requests that the Board grant its Motion for Summary
Judgment against the Respondents, COMMUNITY LANDFILL COMPANY and
the CITY OF MORRIS, award the relief requested herein, set a date
for hearing on the is~ueof civil penalty, and take such other
action as the Board believes to be’ appropriate and just.
-16-
Respectfully Submitted,
MI2CHELL COHEN
Assistant Attorneys General
Envjronmentai Bureau
188 W. Randolph st., 20~Flr.
Chicago, Illinois 60601
(312) 81.4-5388
(312) 814-5282
17-
BY:
StOPHEp. GRANT
2. A finding that the Respondents’ violations were wilful,
knowing, and/or repeated;
3. Ordering the Respondents to cease and desist from
transporting and depositing any additional material at. the
Landfill until they ‘are in full compliance with their Permits,
and the Board’s financial assurance regulations;
4.
Requiring th~ Respondents to immediately provide
financial assurance as required by the Act, Part 811, Subpart G
of the Board sOlid waste regulations, and the Respondents’
permits;
5.
Requiring the Respondents to update the
closure/postclosure costs in accordance with Permits No. 2000-
155-LFM, 2000-156-LFM and modifications thereto;
-
6. Ordering the Respondents to initiate closure of parcels
A & B of the Landfill; and
7. Setting a date,for hearing on the issue of civil
penalty.
.
WHEREFORE, Complainant, PEOPLE OF THE SThTE OF ILLINoIS,
respectfully requests that theBoard grant its Motion for Summary
Judgment against the Respondents, COMMUNITY LANDFILL COMPANY and
the CITY OF MORRIS, award the relief requested herein, set a date
for hearing on the issue of civil penalty, and take such other
action as the Board believes to be’ appropriate and just.
-16-
Respectfully Submitted,
BY:
~
StOPHER GRANT
Mt2’CHELL COHEN
Assistant Attorneys General
Environmental Bureau
188 W. Randolph St., 20~Fir.
Chicago, Illinois 60601
(312) 81,4—5388
(312)’ 814-5282
.
-17-
‘4’
.
