ILLINOIS POLLUTION CONTROL BOARD

December 16,

1993

LEONARD CARMICHAEL,

)

Petitioner,

)

v.

)

 PCB 93—114

)

 (Landfill Siting Review)

BROWNING-FERRIS INDUSTRIES

)

OF ILLINOIS,

 INC.

AND

OGLE

)

COUNTY

 BOARD,

FOR

AND

ON

)

BEHALF

THE

COUNTY

OGLE,

)

STATE

 OF ILLINOIS,

)

Respondents.

ORDER OF THE BOARD

 (by C.

 A. Manning):

This

 matter

is

 before

the

 Board

on

a

 Joint

 Motion

to

Reconsider the Board’s

 order

 of October

7,

 1993.1

The

 instant

Motion was filed by Browning-Ferris Industries (BFI) and the County

of Ogle (County) on November 10, 1993 pursuant to 35 Iii. Adin. Code

SS 101.246 and 101.300.

 The matter was originally before the Board

on

a

 petition

for

 review

 filed

on

 June

16,

 1993,

by

 Leonard

Carmichael,

 pursuant

 to Section

 40.1(b)

of

 the landfill

 siting

section

of

the

 Environmental Protection

Act

 (Act).

 (415

 ILCS

5/40.1(b)

 (1992).)

 The petition for review

 sought the Board’s

review

of

the

 County’s

May

10,

1993

 siting

 approval

of

the

expansion

of

 BFI’s

 regional

 pollution

 control

 facility.

The

Board’s order

 of October

7,

 1993,

 vacated the County’s decision

granting siting approval due to the County’s lack of jurisdiction

to hear the matter.

On November 23,

 1993, Leonard Carmichael filed a response to

the motion

 for reconsideration pursuant to 35

 Iii.

 Adm Code

SS

101.246 and 101.300.

 BFI and the County jointly filed a reply to

Leonard Carmichael’s response.

 While the Board’s procedural rules

at 35 Ill. Adm Code

SS

101.246 and 101.300 concerning the motion

for reconsideration do not provide for BFI’s and the County’s joint

reply

 to Leonard Carmichael’s

 response,

 the reply was received

within the proper tixneframe for our decision—making,

 and therefore

it will be allowed and has been considered.

In ruling upon a motion for reconsideration the Board is to

consider, but is not limited to, error in the previous decision and

facts in the record which may have been overlooked.

 (35 Ill. Adm.

Code S101.246(d).)

 In Citizens Against Regional Landfill

 v. The

The Motion

for Reconsideration

will

referenced

“Mot.”

2

County Board of Whiteside County (March 11,

 1993), PCB 93-156, we

stated that “t)he

 intended purpose of a motion for reconsideration

is to bring to the court’s attention newly discovered evidence

which was not available at the time of the hearing, changes in the

law or errors in the court’s previous application of the existing

law. (Korogluvan v. Chicago Title & Trust Co.

 (1st Dist. 1992), 213

Ill. App.3d 622,

 572 N.E.2d 1154, 1158).”

 While Respondents filed

a

 49 page motion for reconsideration,

 such motion

 presents the

Board with no new evidence, no argued change in law, and no reason

to conclude that the Board’s decision made on October 7,

 1993, was

in error.

 Nonetheless,

 the Board will briefly

 address certain

arguments made by Respondents in their motion.

Respondents

 argue

 that

the

 Board

 denied

 them

 fundamental

fairness by

not

 giving

 them

an

 opportunity

to

 respond to the

jurisdictional question and then applying retroactively “a new rule

of law.”

 (Not.

 at 5.)

 As the Board noted in its October 7,

1993

order

 (Order),

 an objection to jurisdiction may be raised at any

time,

 even by

a

 court on its own motion.

 (See Concerned Boone

Citizens

v.

 M.I.G.

 Investment,

 Inc.

 (2nd

 Dist.

 1986),

144

 Ill.

App.3d.

 334,

 98 Ill.Dec.

 253, 494 N.E.2d 180.)

 The Respondents had

an opportunity at the hearing and in the post-hearing briefs filed

in this matter, and in the instant motion, to present evidence and

arguments

on

the

 jurisdictional

 issue.

No

new

 arguments

or

evidence have been presented which persuade the Board that

its

original decision was in error.

 In addition, the Board notes that

its decision in this matter was not an announcement of a “new rule

of law” as argued by Respondents but rather, as stated in the Board

Order,

 the decision is

 based upon

a

 clear reading of the 14—day

limitation provision in Section 39.2(b)

 of the Act.

Respondents also state that the burden of proving that the

notice

was

 insufficient

is

 on petitioner

and

 that the

 proper

standard of review is whether the County of Ogle’s determination on

the jurisdictional question is against the manifest weight of the

evidence.

 (Mot. at 9.)

 Respondents clearly confuse the issue of

jurisdiction,

 which vests the County with the power to hear the

siting

 approval,

 with

the

 County’s

 decision-making

 process

concerning the nine criteria that must be met pursuant to 39.2(a)

of the Act in order for the County grant such siting approval.

It

is

 inappropriate to

 apply

the

 manifest weight

 standard to

the

question of jurisdiction especially where the issue of jurisdiction

had not been previously presented by petitioner before the County

Board,

 but has been squarely raised for the first time before the

Board.

Respondents also argue that the decision

 is contrary to the

plain meaning of the statutory language, previous Board precedent,

and

 precedent of

 various

 other

 jurisdictions which Respondents

generally refer to as “common jurisprudence of the United States.”

(Mot. at 19.)

 To the contrary, the Board’s decision appropriately

applies and considers the statute,

 and Board and court precedent.

3

Accordingly, for the reasons stated above and in the Board’s

October

7,

1993

 order,

the

 Board

 denies

the

 motion

for

reconsideration and affirms its previous decision.

IT IS SO ORDERED.

I, Dorothy N.

 Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the

/(~-

 day of

________________,

1993,

 by a vote of

~,/

‘~/

~

Dorothy M/7Gunn, Clerk

Illinois ?óllution Control Board