BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
1
)
VS.
1
PCB No. 03-191
)
(Enforcement-Land)
COMMUNITY LANDFILL COMPANY, INC.,
)
an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
1
)
Respondents.
)
to: Mr. Mark La Rose
Mr. Bradley P.
Halloran
La Rose
&
Bosco
Hearing Officer
200
N. La Salle Street, #2810
Illinois Pollution Control Board
Chicago, Illinois 60601
100
W. Randolph, #200 1
(3
12)642-0434
Chicago, IL 60601
Mr. Charles Helsten
Mr. Scott Belt
Hinshaw
&
Culbertson
105 East Main Street
100 Park Avenue
Suite 206
Rockford IL 61 105-1389
Morris, Illinois 60450
(815)963-9989
NOTICE OF FILING
PLEASE TAKE NOTICE that we have today, October 5,2006, filed with the Office of
the Clerk of the Illinois Pollution Control Board, by electronic filing, Complainant's Motion for
Interim Relief, a copy of which is attached and herewith served upon you.
1
Respe t ly Submitted,
,
BY:
ibJL
Assistant
CHRI OPHER
Attorneys
GRANT
General
Environmental Bureau
188
W. Randolph St., 20th Flr.
Chicago,
IL 60601
(312) 814-5388
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
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.
1
)
)
1
)
PCB No. 03-191
)
(Enforcement-Land)
1
)
)
1
1
)
COMPLAINANT'S MOTION FOR INTERIM RELIEF
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, and hereby
moves the Board for an Order granting interim relief in favor of Complainant and against
Respondents, jointly and severally, as follows.
1.
The State files this Motion along with its Interlocutory Appeal of the October 3,
2006 Hearing Officer Order, and the State's Motion for Expedited Review.
This Motion
requests that the Board order Respondents, COMMUNITY LANDFILL COMPANY, INC., and
the CITY OF MORRIS, to immediately provide compliant financial assurance for closure and
post-closure care of the Morris Community Landfill, Morris, Grundy County, Illinois
("Landfill"). Financial assurance for closure and post closure care is required under Section
21(d)(2) of the Act, 41 5 ILCS 5/21(d)(2) (2004), and 35 Ill. Adm. Code 81 1.700(f).
I.
The Respondents Have Failed To Provide Financial Assurance
2.
On February 16,2006, the Board issued an Order finding that the Respondents
had violated Section 2 1
(d)(2) (2004, and 35 Ill. Adm. Code Sections 8 1 1.700(f), and 8 1 1.7 12.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
Howeirer, the State's request for interim relief was denied, including its request that the
Respondents be required to provide financial assurance. Rather, the Board directed the parties to
hearing on all issues of remedy, requesting that evidence be presented on factors related to
Sections
33(c), 42(f), and 42(h), 415 ILCS 5/33(c), 42(f), and 42(h)(2004) (February 16, 2006
Order, slip op., at 16).
3.
As shown by the Affidavit of Brian White, attached hereto as Exhibit A, the
Respondents are required to provide $17,448,366.00 of
closure/post-closure financial assurance
meeting the requirements of 35
Ill. Adm. Code 81 1.700.. However, despite been found in
violation by the Board on February 16,2006, the Respondents continue to avoid posting
compliant financial assurance.
11.
Hearing In This Matter Has Been Indefinitely Delayed
4.
Because of the serious issues posed by the absence of financial assurance at the
Morris Community Landfill, Complainant filed a Motion for Expedited Hearing on March 6,
2006, seeking an April, 2006 hearing date. However, establishment of a hearing date was
prevented by the filing of Respondents' Motions for Reconsideration on March 3 1,2006.
5.
On June
1, 2006, the Board upheld its finding of violations by the Respondents,
and again directed the parties to present evidence on the
33(c) and 42(h) factors (June 1,2006
Order, at
5).
6.
Following the Board's denial of the Respondents' Motions for Reconsideration,
the City of Morris disclosed additional witnesses for hearing. Deposition of the these late-
disclosed witnesses could not be completed until the beginning of August. On June 8, June 15,
June 22, and July 6. 2006
,
the Hearing Officer held telephone meetings to attempt to establish a
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
date for hearing. On July 6,2006, the hearing was scheduled for October 24-27,2006.
7.
If the Board upholds the Hearing Officer's October 3, 2006 Order cancelling the
October 24-27 hearing date, hearing on the sole issue of remedy will be delayed indefinitely.
Although the Hearing Officer has ordered a status on December 7,2006, Respondent
CLC's
Motion to Cancel Hearing does not suggest a replacement hearing date, but only states that the
health status of Edward Pruim will be reviewed in March 2007.
This is more that one year after
the Board found the violations and more than 18 months after Complainant's Motion for
Summary judgment was filed. Without Board intervention, the Respondents will be out of
compliance for the foreseeable future.
111.
A Hearing is Not Necessary for the Board to Order the Requested Relief
8.
The Board has already held extensive hearings on issues related to financial
assurance for the Morris Community Landfill.
In PCB 01-48lPCB 01-49 (Consolidated), a
three-day hearing was held in Grundy County to determine the validity of certain conditions of
the Respondents' sigmod permits, including the amount of financial assurance. On April
5,
2001, the Board affirmed the permit condition requiring financial assurance of $17,427,366. In
PCB 01-170, the Board held a second three-day hearing, related to a permit denial based, in part,
on the
&
of financial assurance provided by the Respondents. On December 6,2001, the
Board upheld the Agency's denial, a decision subsequently affirmed by the Appellate Court.
9.
The State does not believe that a
hearing is necessary for the Board to order
the Respondents to finally provide compliant financial assurance for the Morris Community
Landfill. The regulations are quite clear-owners and operators of landfills
maintain
sufficient, compliant financial assurance to guarantee 100% of their closure and post-closure
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
I
obligations. Nothing in the Act, or pertinent regulations, allows for considerations of diligence,
ability to pay, or economic reasonableness. Owners and operators of landfill are simply required
to provide a compliant guarantee for these costs.
In an enforcement action, any Board
determination to the contrary would allow a violation of the Act.
IV.
The Requested Relief is Necessary to Protect the State
10.
The Board has broad authority to take actions reasonably necessary to accomplish
the Act's purposes. Discovery Sozith Grozip Ltd. v.
Pollzltion Control Board, 275 Ill. App: 3d
547 (1" Dist. 1995). The Board has not hesitated to order compliance prior to final resolution of
all penalty issues. See,
e.'g., Kratusack v. Pate1 et al, PCB 95-143 (August 21, 1997).
11.
If the Board upholds the Hearing Officer's decision striking the October 24,2006
hearing date, the State will be denied relief to which it arguably has been entitled since February
16,2006, and violations will be allowed to continue to an unknowable date. The State cannot
believe that, having found these ongoing violations, the Board is unwilling to stop them.
12.
As stated in the Board's June 1,2006 Order,
"[tlhe purpose of the Act is to ensure
that financial assurance obligations are met so that neither human health nor the environment is
harmed from the operation of a municipal solid waste landfill" (slip op. at 4). The Board takes
financial assurance violations very seriously, and has noted that "...they are among the most
insidious in character
...[
the provisions] are in place to ensure that other more threatening
violations do not occur". People v. ESG Watts,
Inc.,
PCB 96-233 (February 5, 1998, slip op. at
10).
13.
In our case, violation notices were first issued to the Respondents in 2000. The
Respondents have known since 2002
(k.
when the PCB 01-170 appeal was decided by the
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
Appellate Court) that they did not have
compliant financial assurance. However, neither
Respondent has voluntarily complied with the financial assurance regulations, even after being
found in violation in
this
.case. Unless the Board issues a court-enforceable interim order to
obtain compliant financial assurance, the Respondents will be allowed to avoid compliance as
long as the hearing is delayed. Throughout this indefinite period, the citizens of Illinois will be
exposed to the risk of covering closure and post-closure costs at the Landfill-a sum in excess of
$17,000,000. Given the continued and unpredictable delay in rescheduling a hearing, the Board
should find this risk completely unacceptable.
14.
The Board has correctly deferred decision on other issues of remedy. The State
agrees that evidence is required for determining the amount of civil penalty (if any).
Such
evidence will include the duration of violation, whether waste disposal has continued illegally,
and any economic benefit accruing to the Respondents from the violations.
Now that the
State's right to seek complete relief has once more been delayed, the Board should ensure that
the State is not at risk of assuming closure and post-closure costs which
righthlly should be
borne by Community Landfill Company,
Inc. and the City of Morris. The only way to protect the
-
State, effectively address the violations already established, and ensure that the Morris
Community Landfill does not become an 'orphaned landfill', is to require the Respondents to
immediately post financial assurance meeting the requirements of the Part 81 1, Subpart
G
regulations, and maintain such financial assurance to and through the date of hearing on all other
elements of remedy.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board grant Complainant's Motion, and issue an Order:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
1.
Requiring Respondents Community Landfill Company, Inc. and the City of
Morris, to immediately arrange for, and provide to Illinois EPA, closure and post-closure
financial assurance meeting the requirements of 35
Ill. Adm. Code, Subpart G, in the amount of
$17,448,366.00;
2.
Setting a date for hearing on the remaining issues related to remedy, including
civil penalty and attorneys' fees; and
3.
Ordering any additional relief the Board deems appropriate and just.
RESPECTFULLY SUBMITTED
Christopher Grant
Assistant Attorney General
Environmental Bureau
188
W. Randolph St., 20th Flr.
Chicago, Illinois 60601
(312) 814-5388
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
OCT-05-2006
14:03
DLC LEGRL
P. 82
b
AFFIDAVIT
OF BRlAN
WHITE
I, Brian White, after being duly sworn on oath, state that if called upon to testify in this
matter,
I would competently testify as follows:
1.
I have been employed by the Illinois Environmental Protection Agency ("Illinois
EPA") since February
1988.
ci
2.
I received a Bachelor of Science Degree in Environmental Health in
1983
from
Illinois State University.
I also have 44 hours toward a Masters in Public Administration from the
University of Illinois at Springfield.
.. .
3.
My working title is Compliance Unit Manager for the Bureau of Land and my payroll
title is Public Service Administrator.
I have been the compliance Unit Manager since
January
1991.
4
As the Compliance Unit Manager, my responsibilities include supervising a staff that
coordinate the compliance and enforcement activities for the Bureau of Land
and
supervising.a staff
of accountants in the bureau's financial assurance program.
5.
I am familiar with the landfill generally known as the Morris Community Landfill
("Landfill") located in Moms, Illinois. The owner of the Landfill is the City of Moms
("City").
Community Landfill Co. ("CLC") is an operator of the Landfill.
'
The Landfill consists of two
parcels, Parcels
A
&
B.
6.
I have reviewed the Illinois EPA files regarding this maner that relate to CLC and the
City's financial assurance obligations at the Landfill.
7.
CLC and the City were issued various permits including closure and post-closure care
-.
permits for Parcel
A,
Permit No. 2000-155-LFM, dated August
4,
2000 ("Parcel 'A Significant
.
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..
EXHIBIT
.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
OCT-05-2006
14:83
DLC LEGRL
P. 03
p
,
.\
Modification Permit") and for Parcel B, Permit No. 2000-1
56-UM,
dated August 4,2000 ("Parcel B
Significant Modification Permit").
8.
CLC and the City were required to have
financial assurance for its significant
modifications.
See
Section 21.l(a.5) of the Environmental Protection Act, 415
ILCS
21
.l(a.5)
(2004). Thesexfinancial assurance requirements were initially incorporated into Parcel A Significant
Modification Permit and Parcel
B Significant Modification Permit.
9.
CLC
and
the City have received various modifications since the original significant
modifications of permit. The last modification for Parcel
A was dated August 15,2006 ("Parcel A
Significant Permit, Mod. 6). The last modification for Parcel B was
dated
August 15,2006 (Parcel B
Significanl Modification Permit, Mod. 5). For Parcel
A,
CLC and the City are required to maintain
financial assurance
inthe amount of $12,357,756.00.
Parcel
A Significant Permit, Mod. 6, Par.
X.6,
p. 44. For Parcel B, CLC
and
the City are required to maintain financial assurance in the
amount
of $5,090,610.00.
Parcel
B Significant Permit, Mod. 6, Par. IX.6, p. 37. Thus, the total
amount of financial
assurance that CLC and, the City is required to maintain is $17,448,366.00.
10.
Pursuant to 35 Ill.
Adm.
Code 81 1.701(a) and 35 Ill.
Adm.
Code 81 1.706, CLC and
the City
are to provide financial assurance as specified in the regulations and provide continuous
coverage until CLC and the City
are released from the financial assurance requirements pursuant to
35 Ill. Adm.
Code 813.403@) or Section 81
1.326.
1
1.
As of October 4,
2006,
CLC does not have any tlnancial assurance in place for the
Landfill that satisfies the requirements of 35 Ill. Adm. Code Part 81 1, Subpart G.
12. As of October 4,2006, the City does not have any financial assurance in place for the
Landfill
that satisfies the ~equirernents of 35 Ill.
Ah.
Code Part 8 1 1, Subpart G.
.. .
TOTAL P. 83
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
FURTHER
AFFIANT SAYETH NOT
Subscribed
and Sworn to
before me this
'
day
of
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CYNTHIALWOVE
OFFICIAL SEAL
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P
NOTARY PUBUC, STATE OF ILLINOIS
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MY CWMINION wim
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OCT-05-2006
14:17
DLC
LEGQL
P.
02
4
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-- ---
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006
r
-
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
VS.
1
PCB No. 03-191
(Enforcement-Land)
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 5th day
of October, 2006, the foregoing Motion for Interim Relief, and Notice of Filing, upon the persons
listed on said Notice by hand delivery
andlor overnight mail.
dLv%-
CHRISTOPHER GRANT
-- --
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 5, 2006