BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
COMMUNITY LANDFILL COMPANY, INC.,
)
an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
'
)
)
Respondent.
)
PCB NO. 03-191
(Enforcement - Land)
NOTICE OF FILING
TO:
See Attached Service List
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office
of the Clerk of the
Illinois Pollution Control Board by electronic filing the following COMPLAINANT'S REPLY
TO RESPONDENT COMMUNITY LANDFILL COMPANY, INC.'S CLOSING ARGUMENT
AND POST-HEARING BRIEF, a copy
of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
BY:~~~S
Je . er A. mas
Christopher Grant
Assistant Attorneys General
Environmental Bureau
69
W. Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-0609
(312) 814-5388
DATE: December 10, 2007
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing: Received, Clerk's Office, December 10, 2007
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100
W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
Richard Porter
Charles
F. Helsten
Hinshaw
&
Culbertson, LLP
100 Park Avenue
Rockford, Illinois 61105
Scott Belt
Scott Belt and Associate, PC
05 E. Main Street, Suite 206
Morris, Illinois 60450
Mark LaRose
Clarissa
C. Grayson
LaRose
&
Bosco, Ltd.
200N. LaSalle Street, Suite 2810
Chicago, Illinois 60610
SERVICE LIST
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
. )
)
COMMUNITY LANDFILL COMPANY, INC.,
)
an Illinois corporation, and
)
the CITY OF MORRIS, an Illinois
)
municipal corporation,
)
)
Respondents.
)
PCB NO. 03-191
(Enforcement - Land)
COMPLAINANT'S REPLY TO RESPONDENT COMMUNITY LANDFILL COMPANY,
INC.'S CLOSING ARGUMENT AND POST-HEARING BRIEF
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
ofthe State of Illinois, and pursuant to Hearing Officer Bradley
P. Halloran's October 5,2007 Hearing Order, presents its Reply to Community Landfill
Company, Inc.'s Closing Argument and Post-Hearing Brief.
I.
BACKGROUND
On September
11 and 12, 2007, the Board held hearing on the sole issue of remedy in this
case. The Board had already found Respondents Community Landfill Company, Inc. ("CLC")
and the City
of Morris ("City") failed to provide financial assurance for closure and post-closure
care
of the Morris Community Landfill ("Landfill")!. The Board directed the parties to hearing
on the issue of remedy, including penalty, costs, and attorneys fees. The Board specifically
requested that the parties only provide evidence relevant to Sections 33(c) and 42(h)
of the
Illinois Environmental Protection Act ("Act"), 415 ILCS 5/33(c) and 42(h) (2004), and provide
I
The Board's Febr.uary 16,2006 Order granting summary judgment, Complainant's Exhibit 2. The Board'sJune 1,
2006 Order upholding the February 16,2006 Board Order after reconsideration, Complainant's Exhibit 3.
specific figures and justifications for penalty2. On October 19,2007, the Complainant filed its
Closing Argument and Post-Hearing Brief. On November 30, 2007, CLC filed its Closing
Argument and Post-Hearing Brief.
II.
ARGUMENT
A.
Analysis of the 33(c) Factors Finds that a Penalty is Warranted Against
Respondent CLC
1.
Respondent CLC's argument that the Landfill is not deteriorating
belies the facts
Illinois Environmental Protection Agency ("Illinois EPA") inspector Mark Retzlaff
testified at length on September
11,2007 about the deteriorating conditions of the Landfill.
These conditions include inadequate cover
3
,
leachate seeps4, landfill gas escaping to the
atmosphere
5
,
and uncovered refuse
6
•
The photographs included with Mr. Retzlaffs inspection
reports
7
detail some of deterioration that forms the basis for his "eyeball opinion that any waste
is being or has been deposited outside the permitted area.,,8 In fact, the Landfill is not currently
permitted to accept any waste at this time, so whether the waste observed by Mr. Retzlaff was in
a permitted or non-permitted area is irrelevant.
Additionally, Respondent CLC argues that Mr. Retzlaff did not perform any tests at the
Landfill or take any borings
9
•
It
is not the duty of an Illinois EPA inspector to prove that a
Landfill is complying with the law; that is the obligation of the owner and operator of the
Landfill, CLC and the City. In fact, Respondent CLC attempts to mislead the Board by quoting
Illinois
EPA's Accountant, Blake Harris, as to Landfill conditions. Respondent cites to Mr.
2 Complainant's Exhibit 2, p. 18.
39/11/07 Tr., p. 68-69.
49/11/07 Tr., pp. 63, 64, 74.
59/11/07 Tr.,
pp. 63, 68, 71.
69/11/07 Tr., pp. 58,60-67, 72-73.
7 Photographs included in People's Group Exhibit 1, Exhibits 7 and 8.
8 Respondent CLC's Closing Argument and Post-Hearing Brief, p. 8.
9 Respondent CLC'sClosing Argument and Post-Hearing Brief, p. 8.
2
Harris' testimony that "he is not aware of any environmental damage or damage to personal
health, safety or welfare at the landfill caused by the lack of alleged posting of financial
assurance."IO As an accountant, Mr. Harris has neither been to the Landfill nor could speak to its
current conditions. Mr. Retzlaffs testimony on September
11,
2007 and his inspection reports
including photographs tell the story
of the deteriorating conditions at the Landfill.
Respondent CLC cites several actions being taken at the Landfill that would supposedly
contradict the State'sposition that the Landfill is deteriorating
ll
.
Every single one of these
actions were taken as a result
of litigation by the Complainant or required to be accomplished
pursuant to a permit, statute or regulation. Just because Respondent is complying with some its
obligations under the law does not mean the Landfill is not deteriorating. These are obligations
all landfills within Illinois are expected to comply with.
Finally, Respondent CLC refers to a revised closure plan and cost estimate submitted to
the Illinois EPA prior to hearing
12
•
As it stood at the date of hearing, the Illinois EPA was
reviewing this revised closure plan and cost estimate. Review is not acceptance and the
submission will go through its regular channels for a determination.
2.
Respondent CLC efforts to comply with the financial assurance
requirements cannot be deemed diligent
On November 14,2000, Violation Notices were sent from the Illinois EPA to
Respondents CLC and the City, along with 29 other landfills that had Frontier bonds as financial
assurance
13. Ofthe 30 landfills that received the Violation Notice, 28 complied by obtaining
alternate compliant financial assurance and one landfill was abandoned
l4
• The Respondents,
IORespondent CLC's Closing Argument and Post-Hearing Brief, p. 7.
II
Respondent CLC's Closing Argument and Post-Hearing Brief, p. 8.
12 Respondent CLC's Closing Argument and Post-Hearing Brief, pp. 8-9.
13
9/11/07 Tr., pp. 126-127.
14
9/11/07 Tr., pp. 129-130.
3
rather than supply alternative compliance financial assurance, chose to litigate before the Board
the compliance
of the Frontier bonds they had jointly purchased. The Board found the Frontier
bonds were non-compliant
financial assurance (PCB 01-170)15. Respondents appealed that order
to the Third District Appellate Court and again were told that the Frontier bonds were non-
compliantfinancial assurance
l6
.
Since at least July 17,2002, when the Appellate Court denied
rehearing, the issue
of whether the Frontier bonds were acceptable financial assurance was
determined once and for all.
Respondent CLC attempts in its
Brief to re-argue the issue of the compliance of the
Frontier bonds. Those issues have been previously decided
by the Board and affirmed on appeal.
Respondents did absolutely nothing after the Appellate decision to replace the Frontier bonds
and to this day have not supplied alternative compliant financial assurance. Diligence would
have been to provide alternative compliant financial assurance after the Violation Notice in
November 2000, or at the very latest, after the Appellate Court denied rehearing in July 2002.
3.
Respondent CLC's belief that Frontier was providing financial
assurance contradicts
prior Board rulings and the Third District
Appellate opinion
Given that both the Board, in PCB 01-170, and the Third District Appellate Court have
ruled that the Frontier bonds were non-compliant financial assurance, it defies logic that
Respondent CLC could have believed Frontier was continuing to provide financial assurance for
the Landfill. Respondent CLC states in its
Brief that Blake Harris testified as to the validity of
the Frontier bonds through at least 2005
17
• That is correct; the bonds were valid until 2005 with
an automatic one year extension. But, bond validity and bond compliance are two separate
analyses.
It
is indisputable that the Frontier bonds were not compliant financial assurance. To
15 Complainant's Exhibit 4.
16
Complainant's Exhibit 5.
17 Respondent CLC's Closing Argument and Post-Hearing Brief, p. 14.
4
argue anything different ignores the prior Board Order and Third District Appellate opinion.
B.
The Purpose of Respondent CLC Providing Compliant Financial Assurance
is to Avoid the Situation
We Currently Have at the Landfill- Closure Being
Due
without Funding
The purpose of the Board ordering Respondent CLC to supply compliant financial
assurance is to compel compliance with the laws and regulations relating to landfills in Illinois.
The requirement for compliant financial assurance is not new and has been known to the
Respondents since their purchase
of the Frontier bonds. In fact, when the Frontier bonds were
purchased in 1999, the closure
of Parcel B was already 3 years overdue. Respondents should not
be able to use their own delay tactics. in obtaining compliant financial assurance to escape their
obligations under the law.
C.
A Civil Penalty is Warranted Against Respondents for Their Continued
Failure to Comply with the Financial Assurance Requirements
Respondent CLC claims that it is in a Catch-22 situation where it did not receive the
anticipated operating permit and thus has been unable to generate sufficient income to pay for
any premium bonds
l8
• The fact that CLC relied upon the granting of an operating permit in
2001, which was not granted, cannot excuse its obligations to comply with the law.
1.
Respondent CLC's financial situation does not relieve it of its duty to
comply with the laws
and regulations requiring compliant financial
assurance
The Landfill has been operated by CLC since at least 1982. From at least 1982 through
at least 2005, the Landfill was operating and generating income for both CLC and the City. In
fact, Mr. Retzlaff testified that waste continues to be accepted and dumped at the Landfill as
of
June and August 2007
19
•
Edward Pruim, CLC'sPresident, testified that there is not the cash flow
18
Respondent CLC's Closing Argument and Post-Hearing Brief, p. 16.
19
9/11/07
Tr., pp. 58-66.
5
that once was there, years ag0
20
• Respondent CLC's failure to retain sufficient funds to satisfy
the long-term obligations
of the Landfill does not excuse the imposition of a civil penalty.
Respondent CLC claims that it attempted in good faith to provide financial assurance
after the Frontier bonds were determined to be
non-compliane. As detailed above, no alternate
compliant financial assurance was provided after the issuance
of the November 14, 2000
Violation Notice.
No alternate compliant financial assurance was provided after the Appellate
Court opinion in 2002. To this day, compliant financial assurance has not been tendered by
either Respondent for the Landfill. Respondent CLC states that that it never intended to operate
the landfill without financial assurance
22
, but that is exactly what it's done for over 7 years.
2.
The Illinois EPA is entitled to the collateral and premiums held
by
Frontier until compliant financial assurance is in place
The Illinois EPA was listed as the obligee (i.e. beneficiary) of the Frontier bonds when
they were purchased by CLC and the City
23. As such, the Illinois EPA has to give the surety an
opportunity to perform closure or post-closure
24
• However, if the surety does not perform
closure or post-closure, the Illinois EPA is entitled to a penal sum
25
. Frontier is currently in
rehabilitation in
New York and will not be performing closure and post-closure at the Landfilf
6
•
In Complainant'soffer of proof, it was shown that Frontier has been settling similar claims for
significantly less than their original value
27
•
The ability of Respondent CLC and the City to release the collateral and premiums being
held by Frontier for the benefit of the Illinois EPA is wholly within their own ability. Once
2°
9/12/07Tr.p.151.
21 Respondent CLC's Closing Argument and Post-Hearing Brief, p. 16.
22 Respondent CLC's Closing Argument and Post-Hearing Brief, p. 16.
23
9
/11107
Tr. p. 183.
24
9
/11107
Tr.
p.
184.
25
9/11/07
Tr. p. 184.
26
9/11/07
Tr. p. 184.
27
9/11/07
Tr., pp. 187-188.
6
compliant financial assurance is posted for the Landfill in the amount of $17.4 million, the
Illinois EPA will release its claim on the Frontier bonds. The idea that the Illinois EPA is
somehow withholding money that Respondent CLC is entitled to is ludicrous.
\"
III.
CONCLUSION
Complainant respectfully requests that the Board enter an order containing the
following relief:
1.
Requiring the Respondents, jointly and severally, to post financial assurance
meeting the requirements
of 35 Ill. Adm. Code 811.700, and current Landfill
Permits, in the amount of$17,427,366.00, within 30 days
of the date of the
Board'sfinal order;
2.
Requiring the Respondents, jointly and severally, to provide an updated cost
estimate meeting the requirements
of35 Ill. Adm. Code 811.705(d), within 60
days
of the date of the Board's final order;
3.
Requiring the Respondents, jointly and severally, to upgrade the financial
assurance for closure and post closure, as required by
35 Ill. Adm. Code 811.701,
within 60 days
of providing an updated cost estimate;
4.
Requiring the Respondents, jointly and severally, to initiate closure
of Parcel B
.within 60 days of the date ofthe Board'sfinal order, and to complete closure in
accordance with
35 Ill. Adm. Code 811.110, and Permit No. 2000-LFM-156;
5.
Assessing a civil penalty against the Respondents, jointly and severally, in the
amount
of $1 ,056,534.00 and an additional civil penalty against Respondent City
of Morris in the amount of$399,967.40;
6.
Ordering the Respondents to cease and desist from further violation of the Act
and Board regulations, including but not limited to violations
of the financial
assurance regulations; and
7
7.
Ordering such other relief as the Board deems appropriate and just.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the State of Illinois
B~~~a.s
J
IFER~.
TOMAS .
CHRISTOPHER GRANT
Assistant Attorneys General
Environmental Bureau
69 W. Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-0609
(312) 814-5388
8
CERTIFICATE OF SERVICE
I, JENNIFER
A.
TOMAS, an Assistant Attorney General, certify that I caused to be
served by Electronic Filing and First Class United States Mail, the foregoing Notice
of Filing and
Complainant'sReply to Respondent Community Landfill Company, Inc.'s Closing Argument
and Post-Hearing Brief, to the parties named on the attached service list, by depositing same in
postage prepaid envelopes with the United States Postal Service located at 100 West Randolph
Street, Chicago, Illinois 60601 on December 10,2007.
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