BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
Complainant,
)
vs.
)
COMMUNITY LANDFILL COMPANY, )
INC., an Illinois corporation, and the CITY OF )
MORRIS, an Illinois municipal corporation,
)
Respondents.
)
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that on April 28, 2006, the undersigned filed with the Illinois Pollution
Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Motion for Leave to File
Reply to Complainant's Response to City of Morris' Motion to Reconsideration .
Dated: April 28, 2006
Respectfully Submitted,
On behalf of the CITY OF MORRIS
By: Hinshaw & Culbertson LLP
Case No . PCB No . 03-191
HINSHAW & CULBERTSON LLP
100 Park Avenue
P.O . Box 1389
Rockford, IL 61105-1389
815-490-4900
Charles F . Helsten
*+H .
One of Attorneys
This document utilized 100% recycled paper products
RECE11VEDCLERK'S
OFFICE
STATE OF ILLINOIS
Pollution Control Board
"70415199v1806289
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on April 28, 2006, she served a copy of the foregoing upon
:
Mr. Brad Halloran
Hearing Officer
Pollution Control Board
100 W
. Randolph, Suite 2001
Chicago, IL 60601
Mark A
. LaRose,
LaRose & Bosco
200 N. LaSalle Street, #28 10
Chicago, IL 60601
Christopher Grant
Assistant Attorneys General
Environmental Bureau
188 W. Randolph St.,
20`h Floor
Chicago, IL 60601
By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford,
Illinois, proper postage prepaid, before the hour of 5 :00 P .M.,
addressed as above .
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
vs.
)
COMMUNITY LANDFILL COMPANY, INC
.,)
an Illinois Corporation, and the CITY OF )
MORRIS, an Illinois Municipal Corporation, )
Respondents .
)
MOTION FOR LEAVE TO FILE REPLY TO COMPLAINANT'S RESPONSE TO CITY
OF MORRIS' MOTION FOR RECONSIDERATION
NOW COMES the City of Morris, by and through undersigned counsel, and moves the
Board for leave to file the attached Reply in support of its Motion to Reconsider in this
proceeding instanter, and in support thereof states as follows
:
1 .
The Complainant herein has previously filed its Response to the City's Motion for
Reconsideration
. A copy of that Response was physically received by counsel for the City on
April 17, 2006 .
(Further, a copy of the receipt stamp indicating when such document was
received is attached hereto and marked as Exhibit A and incorporated herein by this reference
.)
2 .
In support of this Motion, the City asserts that the Complainant has filed a response
opposing the Motion to Reconsider which does not accurately reflect the state of the facts or law
involved in this case, and the City believes the attached Reply will enable the Board to make a
more informed decision .
PCB No. 03-191
REC
CLERK'S
ER
OFFICE
/ED
?
20,06
Pollution
STATE OF
Control
ILLINOISBoard
704866750 806289
WHEREFORE, the City of Morris respectfully moves the Board for entry of an Order
authorizing the filing of the attached Reply instanter in support of its Motion for
Reconsideration .
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
9tttoeG Respectfully Submitted,
On behalf of the CITY OF MORRIS, an Illinois
Municipal Corporation
By: Hinshaw & Culbertson
Charles F. Helsten
r46V- .
One of Its Attorneys
This document utilized 100% recycled paper products
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
)
vs.
)
COMMUNITY LANDFILL COMPANY,
)
INC.,
an Illinois Corporation, and the CITY )
OF MORRIS, an Illinois Municipal
)
Corporation,
)
Respondents .
PCB No . 03-191
RESPONDENT CITY OF MORRIS' REPLY BRIEF
IN SUPPORT OF ITS MOTION TO RECONSIDER
In paragraph after paragraph of its Response to the City of Morris' Motion to Reconsider
("Response Brief'), the State misstates the applicable legal standards and blurs the relevant facts
involved in this case .
The State leads off its Response with the observation that the City has not offered new
evidence or alleged a change in the pertinent regulations
. (Resp., ¶ 1) This assertion is correct,
but totally irrelevant . The City's Motion is based on errors of law
. The very authorities that the
State cites provide that errors of law are one of the permissible bases for a Motion for
Reconsideration
.
(See
Id.) Thus, the parties actually agree that reconsideration is proper here if
the Board misapplied the law as the City asserts.
The lynchpin of the State's argument that no legal errors were made is the assertion that
Section 21(d)(2) must be interpreted "liberally ." (Resp. ¶ 3,
citing State Oil Company v . People,
352 Ill . App
. 3d 813, 820, 822 NE2d 876, 882 (2nd Dist
. 2004)) However, again, the State's
reliance is grossly misplaced . In the State Oil
case, the court was required to determine if a
statute was to be retroactively applied where the statute was silent on the matter
. Because of the
Legislature's failure to address the retroactivity issue, the Court was required out of necessity to
consider policy concerns such as that favoring liberal interpretation of the Act . (Id.)
The case at bar is totally different than State Oil. By is plain terms, Section 21(d)(2) of
the Act only applies to those persons who "conduct" a waste-disposal operation
. "Conduct" is
not an ambiguous term
. It is defined in Black's Law Dictionary as "to manage
; direct ; lead ; have
direction; carry on; regulate ; do business ."
Black's Law Dictionary, 295 (6th
Ed . 1990) . As an
unambiguous term, the Court must interpret "conduct" consistent with its plain and ordinary
meaning. King v. First Capital Financial Services,
211 Ill . 2d 1, 821 N .E
. 2d 1155, 1169 (2005).
"Liberal" interpretation is neither necessary nor proper in the present case
. The only question is
whether the actions of the City constituted "conduct" of a waste disposal operation, as "conduct"
is commonly understood .
Because the straightforward reality is that the City did not conduct the operations at the
landfill, the State tries to establish "conduct" using every conceivable argument
. Its first
argument is that the City is liable for "conduct" of a waste disposal site by virtue of its ownership
of the land on which the Landfill is located
. (Resp., ¶¶ 2-4) The State is clearly wrong on this
point
. If the Legislature intended to impose liability on passive owners for closure/post-closure
financial assurances, it could have simply said so
. Instead, it made no mention of ownership, and
limited liability expressly to those who "conduct" waste disposal operations
. Indeed, this Board
has previously determined that where there is an active operator at the site, it is only the operator,
and not the owner, who is liable for failure to provide the required financial assurance
. See
People v
. Wayne Burger and Burger Waste Management,
1999 WL 304583 .
The State full well recognizes this problem, and attempts to deal with it by improperly
citing decisions where owners were held responsible for a "pollution source
." (Id., ¶ 5, citing
2
Perkins v
. Pollution Control Board, 187 I11.App.3d 689 (3d Dist 1989)) . But this case is not
about the ability to control a "pollution source."
The State is comparing apples and oranges .
Similarly, it is irrelevant that "owners" have responsibilities under Subtitle G of the
Board regulations or Financial Assurance Regulations
. (Id., ¶ 6) In fact, this merely proves the
City's point
: The Legislature could have made "owners" liable under Section 21(d)(2) . It did
not.
The State's fallback position is that, even if passive ownership is not sufficient in itself to
impose responsibility on the City, the City engaged in certain activities which collectively rose to
the level of "conducting" a waste disposal facility
. But in making this argument, the State again
disregards the law .
Conducting a waste disposal facility operation requires either "actual
participation in operations" (People v
. Bishop, 315 Ill.App.3d 976, 979, 735 N.E.2d
754, 757
(5th Dist
. 2000)), or active supervision of those doing the waste disposal work
. Termaat v. City
of Belvidere, 1986 WL 27133
. The City did neither
. No employee of the City of Morris worked
at the landfill, no employee of the City of Morris was observed spreading and compacting waste,
no City employee has operated waste or earth moving equipment at the landfill, and the City has
not conducted any waste disposal operations or other operations at the landfill
. (See
Affidavit of
Mayor Dick Kopczick, attached as Exhibit A to the City's Response to Cross-Motion for
Summary Judgment)
Totally lacking facts that are indicative of "conducting" waste disposal operations as that
term is commonly understood, the State attempts to meet the Summary Judgment standard by
focusing on facts that show, at most, only tangential and indirect involvement of the City
. For
example, the State cites the fact that the City signed permit applications
. (Id., ¶ 7)
But merely
having one's name on a permit does not establish that one is an operator
. Bishop, 315 Ill.App.3d
3
at 979, 735 N .E .2d at 757 (5`h Dist. 2000)
. Here, the City was legally required to sign permits
because it owned the land . Accordingly, the presence of its name on the permits did not reflect
involvement in the facility's operations
.
So too, the fact that the City "jointly litigated against the State in Landfill matters"
(Id.),
is in no way indicative of the City's actual involvement in the day-to-day operation or
management of the Landfill
. Rather, the purpose of the litigation was to assert the validity of the
current performance bonds, a wholly distinct and separate issue from that presently before the
Board.
Also irrelevant is the State's assertion that the City treated leachate from the Landfill
.
(Id., 1
8) If providing a service to a landfill constituted "conducting a waste disposal facility,"
dozens of other service providers could be held liable
. By the same token, while it is true that
the City financially accommodated CLC with respect to the surety bonds, that does not constitute
operation of the waste facility
. If it did, every lending institution that accommodates a customer
would be liable for the consequence of every business act in which the company engaged
.
The State also vaguely asserts that the City could be considered to be a partner or joint
venturer with CLC. (Id., ¶ 9 & n.2)
But there is no partnership agreement, other document or
any other evidence contained in the record in this matter that supports this claim
. In fact, the
1982 Lease Agreement indicates exactly the contrary
. Furthermore, this theory would require
that one partner or joint venturer exercise control over the conduct of the other
. (See id.)
As
discussed above, the City never exercised control over CLC's operations
. Accordingly, it cannot
(as a matter of law) be held liable as a partner or joint venturer
.
The State's Response culminates with a pair of sweeping and highly prejudicial
generalizations
. Ignoring the evidence, the State alleges that the City had the "ability to regulate
4
landfill operations" (Id., ¶ 9) and had "continuous involvement in waste-disposal related
activities at the Site ." (Id., ¶¶ 10, 11) These allegations are totally unsubstantiated and
misleading. It is the State's
job to "regulate landfill operations," not the City's . The City was
not continually involved in waste-disposal activities . The City did not have discretion and input
into landfill operations
. The fact that the State feels compelled to make these assertions, even
though it cannot support them, speaks volumes .
CONCLUSION
For all of the foregoing reasons, as well as those set forth in its initial Motion for
Reconsideration and supporting Brief, Respondent the City of Morris respectfully requests that
the Board grant its Motion for Reconsideration .
Dated: 7,2, "Loot
.
Respectfully Submitted,
On behalf of the CITY OF MORRIS, an Illinois
Municipal Corporation
By: Hinshaw & Culbertson
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Charles
C414
F .
.~
Helsten
t.
rf"'' •
One of Its Attorneys
This document utilized 100% recycled paper products
70486416v2806289
