BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

PEOPLE OF THE STATE OF ILLINOIS,

)

CLERK’S

OFFICe

Complainant,

)

OCT 312005

STATE OF ILLINOIS

vs.

)

PCB No. 03-191

POllution

Contr~gBoard

(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

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 31, 2005, the undersigned filed an original

and nine copies of RESPONDENT COMMUNITY LANDFILL COMPANY INC.’S

RESPONSE TO THE CITY OF MORRIS’ MOTION FOR SUMMARY JUDGMENT with Ms.

Dorothy Gunn, Clerk ofthe Illinois Pollution Control Board, 100 W. Randolph Street, Suite 11-

500, Chicago, Illinois 60601, a copy ofwhich is attached and hereby served upon you.

One ofthe Attorneys for Community ~fill

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.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

)

RECEIVED

)

CLERKS OFFICE

Complainant,

)

OCT 312005

vs.

)

PCB No. 03-191

STATE OF ILLINOIS

)

(Enforcement)

Pollution

Control Goarci

COMMUNITY LANDFILL COMPANY,

)

INC., an Illinois corporation, and

)

the CITY OF MORRIS, an Illinois

)

municipal corporation,

)

Respondents.

)

RESPONDENT COMMUNITY LANDFILL COMPANY INC.’S RESPONSE TO

THE CITY

OF MORRIS’ CROSS-MOTION FOR SUMMARY JUDGMENT

Respondent Community Landfill Company, Inc., (“CLC” or “Respondent”) by and

through its attorneys LaRose & Bosco, Ltd., hereby responds to the City of Morris’

Cross-Motion for Summary Judgment. In support thereof, Respondent states as follows:

INTRODUCTION

The City of Morris’ Cross-Motion for Summary Judgment lacks legal foundation

and must be denied. By attempting to downgrade its interest in the Landfill to a “fee title

holder,” the City of Morris sets forth a disingenuous, last-minute effort to distance

themselves from this litigation. For the reasons stated in the argument section, this Board

should deny the City ofMorris’ Cross-Motion for Summary Judgment.

THE CITY

OF MORRIS IS AN OPERATOR OF THE MORRIS

COMMUNITY LANDFILL

Courts should dispose oflitigation through summary judgment only if the moving

party’s rights are free and clear from doubt.

Kurczak v. Cornwell,

835 N.E.2d 452, 460

(2nd Dist. 2005). If the non-moving party can demonstrate a genuine issue of material

fact, the court should not dispose of the litigation through such drastic measures.

Id.

cursory glance at the City of Morris’ actions at the landfill show that it was no mere fee

title holder of the landfill as it would like to characterize itself, but rather is an operator

substantially involved in conducting the waste disposal operation.

The rules that govern the Illinois Pollution Control Board strictly define an

operator as a “person who conducts a waste treatment, waste storage or waste disposal

operation.” 35 Ill.Adm.Code 807.104. However, courts and the Board itself have

broadened the definition depending “on the specific facts of the case as a whole.”

People

v. Bishop,

315 Ill.App.3d 976, 978 (5th Dist. 2000).

Bishop,

the Defendant Dean Bishop challenged the Board’s finding that he was

an operator of a landfill despite the fact that he never applied nor signed a permit stating

that he was the operator.

Bishop

at 977. Nonetheless, in finding that Bishop was an

operator, the court looked to his substantial involvement in the landfill noting that Bishop

pledged a certificate of deposit as financial assurance for the landfill.

Id.

at 980.

Similar to the Defendant in

Bishop,

the City of Moths has pledged financial

assurance for the operation of the landfill. (Exhibit 1, May 31, 2000 Performance Bond).

The City of Morris’ substantial involvement in the permitting process and the financial

assurance negotiations demonstrates that it was more than a passive owner of the landfill.

In further support of the proposition that the City of Moths is not merely a passive

owner, the City has been issued numerous permits over the course of the past years. (See

People’s Exh. K, ¶6).

Additionally, the Board regulations are clear that “tjhe owner or operator shall

provide financial assurance to the agency

35 Ill.Admin.Code 811.700(b). The

Board does not limit the responsibility solely to either entity. The City of Morris jointly

litigated issues relating to financial assurance and for it now to say that it is not

responsible because it does not “conduct” waste disposal operations is simply an attempt

to avoid these responsibilities. If it did not have this responsibility, why did it post a

performance bond in the amount of $10,081,630.00? (See Exh. 1).

The City of Moths has made a commitment to the Illinois Environmental

Protection Agency to treat leachate, condensate and groundwater at the landfill. (See

Addendum to Lease Agreement, attached as Exhibit 2). Tn the Addendum to the Lease

Agreement dated July 1, 1982, (the addendum being dated July 20, 1999), the parties are

described as “co-applicants” and “co-permitees”. (See Exh. 2). On December 13, 1999,

the City Council of the City of Moths authorized Mayor Robert Feeney to purchase the

performance bond “to secure its obligations” and to enter into the Lease Addendum

authorizing it to accept and treat leachate, groundwater and condensate. (See Resolution

No: R-99-6, attached as Exhibit 3).

As defined by the Pollution Control Board’s

administrative rules, the

operator,

and not the owner, “is responsible ofthe operation of a

leachate management system.” Ill.Admin.Code

811.309(a). By agreeing to treat

leachate at the landfill, and by providing financial assurance, the City of Moths is an

operator who conducts a waste treatment operation. For the City of Morris to now state

that it is a mere owner ofthe landfill property is to turn its back on its prior commitments.

While the City of Morris is the owner of the land, its actions as an operator ofthe

landfill completely contradict its arguments as set forth in its Cross-Motion for Summary

Judgment. At the very least, the City of Morris’ actions demonstrate a genuine issue of

material fact necessary to survive summary judgment.

WHEREFORE, for the reasons stated herein, Respondent Community Landfill

Company, Inc. respectfully requests that the Board deny the City of Moths’ Cross-

Motion for Summary Judgment.

Respectfully submitted,

Attorney for Community Landfill Company

Mark A. LaRose

Clarissa C. Grayson

LAROSE & BOSCO, LTD.

Attorney No. 37346

200 North LaSalle Street,

Suite 2810

Chicago Illinois 60610

(312) 642-4414

fax (312) 642-0434

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

RESPONSE

TO THE CITY OF

MORRIS’ CROSS-MOTION FOR SUMMARY

JUDGMENT by placing the same in the United States Mail, first-class postage prepaid

this 3l’~day of October 2005, addressed as follows:

Mr. Christopher Grant

Environmental Bureau

Assistant Attorney General

188 West Randolph Street

20th Floor

Chicago, Illinois 60601

Mr. Bradley Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph

Suite 11-500

Chicago, Illinois 60601

Mr. Scott Belt

Scott Belt and Associates, PC

105 East Main Street

Suite 206

Moths, Illinois 60450

Mr. Charles F. Helsten

Hinshaw & Culbertson, LLP

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

Mark A. LaRose

Clarissa C. Grayson

LaRose & Bosco, Ltd.

Attorney No. 37346

200 N. LaSalle Street

Suite 2810

Chicago, Illinois 60610

(312) 642-4414

One of the Kttorneys for Community ‘I~andfillCo.

r~p

~‘1

City

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•

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pa.rcbw.*i-

fity of btxris

____

Typed

~ ~

lIla.

Mayor, City

pf

Morris

-__5131jo6

they 

ve’v autituilnil Ia

c.dtwMit ijth .rw

buu:t

h~li:d(

of

Site

i’rincip~.iiflu$

coh~.poicAflsL’RETY

t~qt,u.r

Etatier Irsxarce ctnçany

Address

Ehfl Hill Pike, SAte ECU

bbthviUe,V437214

SPate

ai’ btcnpus:Iic’si t~WYork 

- —

Ab~n4Onrrhc site;

b) Is

i4jud~tate4beau4pt~

Tip I,

Ceirtunrui ito!

Band p?et’Lufll

S ~

128

Swant;er

INSURANCE COMPANY

2636 Elm Hilt P

i/cc

Su/te 

500

Nashville

Tennessee 37214

BOND RIDER

To be attached to arid form a part of City ofMorris

Bond No

158465

Dated

May 31st

2000

as Principal, and

FRONTIER INSURANCE COMPANY, as Surety, in favor of Illinois Environmental Protcctio4 Agency

as Obligee.

It is understood and agreed that the Bond is changed or revised in the particulars as indicated below:

The expiration date of

the bond is

hereby amended from: 5-31.01

to: 5-31.05

Said Bond shall be- subject to all its terms, conditions, and li~nitations,except as herein exprçssly modified.

This Bond Rider shall become effective: July 13, 2000

IN WITNESS WHEREOF, FRONTIER INSURANCE COIWANY has caused its corporate seal to be hereunto

affixedthis: July 13. 2000

. -

FRONTIER INSURANCE COMPANY

(ScaD.

ChrjAtine Cahill,

Attorney-in-Fact

FRT-RDR

(4/99)

Illinois

DuPage

)

COUNTY OF

)

Onthis

31st

dayof

August      

_,19.2L,beforemecame

Mark

M. Cap us         

who executed the preceeding innumenc,

to me personally I~own,and being by me duly sworn, said that he/she is the therin described and

authorized AflORNtY-N-PACr

COMPANY;

that the seal ted to

said insutinent is

the

Corpornc Seal ofsaid Company.

TESTUvIONY V

OP ba~p~e~nyanwhand and affi~e4my Official Seal the

day

and year first above written,

~ OFFICIAL SEAL

NANCy I IAN~

UOT4fly ~

tr ~i

SEAL

Mt~~  

OiLu~s

Our? Ptblic

______

~fln~Nflt~1

TRE 1 FASy fl&flD

flit

Y_L1932

This

Addcndurn to

Lea.se Agreethect dared July 1 1932 is maile on Iuly

—,

1909 by and

between the City of N-lijrris (bereinafter refertcd cc as L&ssor~and Community LandtiIl Co.. an

finds co~oration (hereinuf~errcfe~dto iss~e~).

‘The 

parties arc preseutty co-perrrictecs of N-Curt-is Conurtunicv t.aru.U11 under Permit

No.

1996-21 

—SP. dated October

II, 1996. 

and various other suo&emenial

pCr:ti:tS

issued b’. the

EPA.

2.

The

parties 

are co-appucauts under an application (~rsi~niticantrllodihuation

at’

P~jtelA (east side) and Parcel B (wtst side). EPA permit applicaton log nos 1996-255 aud 1

256.

This

permit appliculion k pr:scntly under consideration by the EPA, and a d~eisionis

expected to be rendered by the EPA in calendar veer 1999.

Pursuant to the provisions ofpara;ra~h10 of the November

~L,

19 amendment,

the

laridH-Il

n-tay 

remain open and operaring. suh~ect

the tcrms and c;ot:dirions of any permit or

~errnits issued by he IEPA. undl rip later thnn July 2010. Should the parcels reac-h anal disposal

capacity pdor to July 2010, the 

l~dtiflshall close but this lease shall continue Car lessce to conduct

closure and post closure care and remedial activities as resuired by applicable IPA permits.

That thu present closurcfpost-clasure can plans submirted to the IEPA or both

parcels ruquire the collection and creztrnent’olluachatc, g~oundwater: arid gas condensate from the

landfill. ‘Ilic cldsurcipost-closure care plans presently allow the Lessee

hold ihe Icachate.

contaminated ground waLer, and ~as condensate in an cq-uaUz~tcioct:ank on site, and to pump it to the

City olMoris POTW’ via the Cit~’of Morth 2ewdrsv~ent,pursuint

EPA Permit No. 999-Efl-

3440.and spcciHcally subject to any limitations and provisions imposed by the City ciMurris. lit

considcnuion of the rents, royalties, disposal privi1e~es,methane ~ns production rentnls. the l.ezsor

EBIT

acrocs subject to ~

limitations and provisions issued by the ;Citv of Mon-is PQTW, that it will

accept and c-eat the groundwater arid condensate without eharsc, aud accept 

and crc2t the Iceehare

without charge for up to 

3.500

~allc~nsper U1 

and a~a ehargc of SI .60 per thousand gallons for an~

Icachare in excess o(3,500 gallons per day.   

- -

This Agreement does aotrclleve Lessee of the responsibiit~of ccnipl’;icg with the

pcflvisious of LEPk Pet-mit NI,. I

999-EF-3~L40.

or the provision of any ott pet-nut rela1ut~ta die

aneralioci, closure orpo~z-c1osurecare of the landñli. and specifically any limitations and provisions

imposed by the City of Mm-mis POTW.

This Agreement shall inure to the

heneñi cFt,essee, its successors and a.csitrns, and

speciFically to the State ofillinois Ezivironmeutal Protecdotx A~eacv,or its desiunec, in the evetir

i~is required to perform closure/post-closure acti~ities.

All ul’ the closure and post-closure rtspou~ibilit:esfor the sire is sct fort in a

ntusureipust-etosure plan approved

by the IPA, shall remain the responsibility of the lessee.

S.

All ofthe tents and ennUitiun~of the JuJy 1, 1982 l~isu,and any amendments arid/or

adde’ndurn thertto riot peciiieally modified by this Mdcndurn shall rcntaizi.in lktll force ‘and ottect.

COMMUNrY I.ANtFrLL CC..

Lessee

By_______

Its Presiden

CITY OP MORRIS

It~Mayor

AGREEMtNT ‘FOR TREATMENT OF-

-. - -

LIQUID FROM MORRIS COMMUNITY LANDFILL

This Agreement is made this

____

day of July, 1999 by and between the City of Morris

(hereinafter the City) and Community Land~llCo., an Illinois corporation (hereinafter CLC).

‘1.

Pursuant to the provisions of a July 1999 Addendum to the Lease between the City

and CLC, regarding Morris Community Landfill, the City has agreed to accept and treat leachate,

groundwater and gas condensate from Morris Cothmunity Landfill at the City’s publicly owned-

treatment works (POTW).

The City and CLC expressly agreethat the Cit~sability to accept and treat leachate,

groundwater and gas condensate at the City’s POTW may be limited by capacity ofthe POTW,or

restrictions put on the POTW by the Illinois Environmental Protection Agency (IEPA). The City

may have to impose future lirnitation,s on its ability to accept and treat the leachate, groundwater and

gas condensate, from Morris Community Landfill, based on capacity considerations or restrictions.

imposed by the Illinois Environmental Protection Agency.

Notwithstanding anything in the Addendum to the Lease dated July_, 1999, CLC

agrees that the City may place future limitations or conditions on its acceptance of leachate,

groundwater, or gas condensate at the City’s POTW based on capacity ~orisiderationsor restrictions

imposed by the Illinois Environmental Protection Agency.

COMMUNITY LANDFILL

CO.

By:____

Its Presiden

CITY

MORRIS

By:_______________

Its Mayor

RESOLUTION NO:

R-99-6

Be it resolved by the City CounCil of the- City of Morris,

Illinois as follows:

WHEREAS, an addendum to the lease dated July 1, 1982 and as

amended between the City of Morris and Community Landfill Company

concerning the Morris Community Landfill has been recommended by the

-‘

Finance Committee of the City of Morris; and

WHEREAS, the addendum is necessary to promdte public health and

safety; and

WHEREAS, the Legislature of the State of Illinois has granted

municipalities the authority -to enter..into such- agreements and/or

addendums; and

WHEREAS, the addendum is necessaiy to protect the City of Morris

as to closure and post closure care of the Morris Community Landfill;

and

WHEREAS, the City of Morris is materially interested in the

transaction in which the City of’~Morriswill apply to the Frontier

Insurance Company for,a performance bond to secure its obligations for

closure and post-closure Care of the Morris Community Lafidfill; and

WHEREAS, the Frontier Insurance Company has executed or is

willing to consider the execution of such bond, as surety, upon being

furnished with the written indemnity of the City of Morris; and

WHEREAS, the City of Morris hereby agrees to purchase a

performance bond in the amount of $10,081,630 from Frontier Insurance

Company or its agent in order to insure the performance of the City

of Morris’ treatment of leachate and groundwater in the City of Morris

publicly owned treatment facility for the post., clbsure care period of

the Morris Community Landfill; and

WHEREAS, it is necessary to authorize the Mayor to do all things

and sign all documents necessary tO secure said performance bond; and

WHEREAS, Community Landfill Company has agreed to pay all bond

premiums of said bond.

IT IS HEREBY resolved that the Mayor and the City Clerk are,

hereby authorized to execute any and all documents necessary to secure

said aforementioned performance bond and to enter into the addendum

to the lease dated July 1,

1982 by and between the City of Morris and

community Landfill Company.

Passed this 13th day of

December

‘

A.D. 1999.

Ayes

Nayes

Pass

Approved:

Attest:

NayflbertC~7

C~rkJohnb~