BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C., )
)
Petitioner,
)
)
v.
)
)
PCB 07-113
THE CITY OF ROCHELLE, an Illinois
)
(Third-Party Pollution Control Facility
municipal corporation, and THE
)
Siting Appeal)
ROCHELLE CITY COUNCIL,
)
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE THAT
on the 11th day of March, 2008, Emily R. Vivian,
one of the attorneys for Petitioner, CONCERNED CITIZENS OF OGLE COUNTY, filed a
Motion for Leave to File an Amicus Curiae Response to Motions for Reconsideration of Opinion
and Order,
Instanter,
via electronic filing as authorized by the Clerk of the Illinois Pollution
Control Board.
Respectfully submitted,
CONCERNED CITIZENS OF OGLE
COUNTY
By: /s/ Emily R. Vivian
One of Its Attorneys
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams, Suite 360
Peoria, IL 61602
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
Electronic Filing - Received, Clerk's Office, March 11, 2008
2
STATE OF ILLINOIS
)
)
SS
COUNTY OF PEORIA
)
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the Motion for Leave to File an Amicus
Curiae Response to Motions for Reconsideration of Opinion and Order,
Instanter,
was served
upon the following persons via email and regular mail on the 11th day of March, 2008, before
5:00 p.m., with all fees thereon fully prepaid and addressed as follows:
Mr. Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, IL 60601
Mr. Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
Rockford, IL 61101
halloranb@ipcb.state.il.us
chelsten@hinshawlaw.com
Mr. Donald J. Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601
dmoran@pedersenhoupt.com
Mr. Alan Cooper
City Attorney
233 East Route 38, Suite 202
P.O. Box 194
Rochelle, IL 61068
cooplaw@rochelle.net
By: /s/ Emily R. Vivian
Emily R. Vivian
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams, Suite 360
Peoria, IL 61602
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
Electronic Filing - Received, Clerk's Office, March 11, 2008
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C., )
)
Petitioner,
)
)
v.
)
)
PCB 07-113
THE CITY OF ROCHELLE, an Illinois
)
(Third-Party Pollution Control Facility
municipal corporation, and THE
)
Siting Appeal)
ROCHELLE CITY COUNCIL,
)
)
Respondents.
)
MOTION FOR LEAVE TO FILE AN
AMICUS CURIAE
RESPONSE TO MOTIONS
FOR RECONSIDERATION OF OPINION AND ORDER,
INSTANTER
NOW COMES Concerned Citizens of Ogle County (“CCOC”), by and through its
attorneys, David L. Wentworth II and Emily R. Vivian of Hasselberg, Williams, Grebe,
Snodgrass & Birdsall, and for its Motion for Leave to File an
Amicus Curiae
Response to
Motions for Reconsideration of Opinion and Order,
Instanter,
pursuant to 35 Ill. Admin. Code
Sections 101.110(c) and 101.520(b), state and allege as follows:
1.
That, on July 12, 2007, the Illinois Pollution Control Board (the “Board”) entered
an Order granting CCOC’s Motion for Leave to File an Amicus Curiae Brief in the above-
captioned matter.
2.
That on December 10, 2007, CCOC filed its Amicus Curiae Brief, supporting and
defending the conditions imposed by the Rochelle City Council (the “City Council”).
3.
That throughout the local pollution control facility siting public hearings before
the City Council, CCOC was the only objector to the City of Rochelle’s application seeking local
siting approval for an expansion of the existing municipal solid waste landfill in Rochelle,
Illinois.
Electronic Filing - Received, Clerk's Office, March 11, 2008
2
4.
That throughout the proceedings before this Board, CCOC has been the only
supporter and defender of the conditions imposed by the City Council.
5.
On January 24, 2008, the Board issued an Opinion and Order (the “Order” or
“Opinion”), affirming the decision of the City Council to impose Special Conditions 8, 13, 22,
23, 26 and 28 and modifying Special Conditions 33 and 34.
6.
That on March 5, 2008, Respondent, the City Council (local siting authority) filed
a Motion to Reconsider this Board’s Order.
7.
That on March 5, 2008, Respondent, the City of Rochelle (applicant) filed a
Motion for Reconsideration of the Order.
8.
That on March 6, 2008, apparently buoyed up by the "commend[able]" and
"admirable" work of the Respondents in filing for reconsideration, the Petitioner, Rochelle Waste
Disposal (operator) filed its own Motion for Reconsideration of the Order.
9.
Where, as here, CCOC was an active participant in the local siting proceedings,
and CCOC was the only participant to file an amicus brief seeking to have the special conditions
in the proceedings before this Board affirmed, CCOC is, by necessity, the only participant
capable and qualified to continue to defend the imposition of the various conditions at issue in
the Motions for Reconsideration.
10.
That a copy of CCOC’s
Amicus Curiae
Response to Motions for Reconsideration
of Opinion and Order ("Response") is attached hereto as Exhibit A.
11.
That although "response" briefs related to
amicus curiae
are normally not allowed
by the Board rules, 35 Ill. Admin. Code Section 101.110(c), responses to motions to reconsider
are. 35 Ill. Admin. Code Section 101.520(b).
Electronic Filing - Received, Clerk's Office, March 11, 2008
3
12.
That the proposed Response is tendered in a timely manner within the time
allotted for a response to a motion to reconsider, and therefore, should not delay the decision-
making of the Board. 35 Ill. Admin. Code Sections 101.110(c) and 101.520(b).
WHEREFORE, Concerned Citizens of Ogle County respectfully prays that the Illinois
Pollution Control Board grant its Motion, thereby giving CCOC permission to file an
Amicus
Curiae
Response to Motions for Reconsideration of Opinion and Order,
Instanter
, in this matter,
and for such other and further relief as the Board deems just and proper.
Respectfully submitted,
CONCERNED CITIZENS OF OGLE
COUNTY
By:/s/ Emily R Vivian
One of Its Attorneys
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams Street, Suite 360
Peoria, IL 61602-1320
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
W:\DLW\Land Use-Zoning\Ogle\IPCB Appeal\Motion for Reconsideration\
Motion for Amicus Response.combined.doc
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL, L.L.C., )
)
Petitioner,
)
)
v.
)
)
PCB 07-113
THE CITY OF ROCHELLE, an Illinois
)
(Third-Party Pollution Control Facility
municipal corporation, and THE
)
Siting Appeal)
ROCHELLE CITY COUNCIL,
)
)
Respondents.
)
AMICUS CURIAE
RESPONSE TO MOTIONS FOR RECONSIDERATION
OF OPINION AND ORDER
NOW COMES Concerned Citizens of Ogle County, by and through its attorneys, David
L. Wentworth II and Emily R. Vivian of Hasselberg, Williams, Grebe, Snodgrass & Birdsall, and
as and for its
Amicus Curiae
Response to Motions for Reconsideration of Opinion and Order,
respectfully states and submits as follows:
INTRODUCTION
On January 24, 2008, the Illinois Pollution Control Board (the “Board”) issued an
Opinion and Order (the “Order” or “Opinion”), affirming the decision of the Rochelle City
Council (the “City Council”) to impose Special Conditions 8, 13, 22, 23, 26 and 28 and
modifying Special Conditions 33 and 34.
On March 5, 2008, the City of Rochelle (the “City”) filed a Motion for Reconsideration
of the Opinion and Order, requesting that the Board reconsider its affirmance of Special
Condition 23, involving perimeter berms, and Special Condition 13, involving the exhumation of
unit 1. In addition, on March 5, 2008, the City Council filed a Motion to Reconsider, requesting
that the Board reconsider its affirmance of Special Condition 23. On March 6, 2008, Rochelle
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
2
Waste Disposal (“RWD”) filed a Motion for Reconsideration, requesting the Board to revise its
Order with respect to Special Conditions 13 and 23. The motions for reconsideration filed by the
City, the City Council and RWD shall be collectively referred to as the “Motions.”
The Board properly considered all of the available evidence and applied the proper
standard of law in affirming Special Conditions 13 and 23, and thus, the Motions should be
denied in their entirety and said Special Conditions should be upheld.
ARGUMENT
I.
INTRODUCTION
Pursuant to Section 101.902 of Title 35 the Illinois Administrative Code, “In ruling upon
a motion for reconsideration, the Board will consider factors including new evidence, or a
change in the law, to conclude that the Board’s decision was in error.” 35 Ill. Adm. Code
101.902 (2008). “The Board is not in a position to reweigh the evidence, but it must determine
whether the decision of the City Council is against the manifest weight of the evidence.”
Rochelle Waste Disposal, L.L.C., v. The City of Rochelle,
PCB 07-113, slip op. at p. 21 (January
24, 2008). “The petitioner bears the burden of proving that the conditions are not necessary to
accomplish the purposes of the Act and therefore were imposed unreasonably.
Rochelle Waste
Disposal, L.L.C., v. The City of Rochelle,
PCB 07-113, slip op. at p. 52 (January 24, 2008), citing
IEPA v. PCB,
118 Ill. App. 3d 772, 780, 455 N.E.2d 188, 194 (1
st
Dist. 1983); 415 ILCS
5/40.1(a) (2006); 35 Ill. Adm. Code 107.506.
RWD mistakenly asserts that the positions taken by the local siting authority
during
the
instant appeal constitute the "findings" and "decision" of the local siting authority subject to
review by this Board. To the contrary, the findings and decision of the local siting authority
subject to review by this Board were those made by the City Council on April 11, 2007
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
3
(approving application subject to conditions), as affirmed by the City Council on May 8, 2007,
by denial of RWD's motion to reconsider the April 11 imposition of Special Conditions 13 and
23, among others.
Rochelle Waste Disposal, L.L.C., v. The City of Rochelle,
PCB 07-113, slip
op. at pp. 5-6 (January 24, 2008); 415 ILCS 5/39.2(e); 415 ILCS 5/40.1(a). RWD's Motion for
Reconsideration marks the third time it has attacked Special Conditions 13 and 23, and both prior
attempts for relief were denied by the local siting authority and this Board, respectively.
In addition to confusing what "findings" are at issue, throughout its Motion for
Reconsideration, RWD repeatedly claims that no "party" has challenged the local siting
authority’s position on appeal before this Board as to Special Conditions 13 and 23. RWD
further asserts, albeit incorrectly, that the findings of the local siting authority were
“unchallenged” by any "party." Although RWD is technically correct that CCOC, as an
amicus
,
is not a "party" to the immediate proceedings, RWD’s hyperbole does not get it anywhere.
CCOC was granted leave to file an
amicus curiae
brief. In its brief, CCOC recited evidence
from the record sufficient to sustain the conditions, including Special Conditions 13 and 23.
In fact, one party has partially broken ranks: The City Council is not seeking
modification as to Special Condition 13. Stated differently, the City Council is not challenging
the Order of this Board as to Special Condition 13. The City Council now apparently agrees
with its original "decision," and finds the Board's Order regarding the exhumation schedule for
Unit 1 to be sound.
Furthermore, CCOC has consistently challenged the application. As an alternative to
denial of the application, CCOC proposed numerous conditions to be imposed during the siting
hearing before the City Council. On appeal, CCOC had no procedural opportunity to attack the
positions of the City Council and the City of Rochelle during the instant appeal due to the
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
4
limitations imposed by the Board rules governing public participation. See 35 Ill. Admin. Code
Section 101.110(c). Nonetheless, CCOC was, as it turns out, the only supporter on appeal of the
conditions initially imposed by the local siting authority, and did so in its
amicus curiae
brief by
reciting evidence from the record sufficient to sustain the conditions, including Special
Conditions 13 and 23.
In its Motion for Reconsideration, RWD cites to
Waste Management of Illinois v. County
Bd. of Kankakee County,
PCB 04-186 (January 4, 2008) for the general proposition that the
Board may not reweigh the evidence on the siting criteria or substitute its judgment for that of
the local siting authority. In this case, the Board did not reweigh the evidence. It appears that
RWD is forgetting that the Board actually
affirmed
the decision of the City Council. RWD’s
argument that the Board cannot substitute its judgment for that of the City Council is misplaced
as the Board did not reweigh evidence but merely affirmed the decision of the City Council. In
its Response Brief, the City Council itself reweighed the evidence, after it had already rendered a
formal decision. RWD frames the "reweighing" issue by focusing on the local siting authority's
position taken during the instant appeal, rather than on the correct decision issued by the City
Council on April 11, 2007.
The terms of the restated host agreement appear to be in play between the parties on
appeal. CCOC is not privy to any post-decision communications since April 2007 between or
among the City Council, the City and the operator, RWD. However, a fair reading of the briefs
of the parties on appeal suggests that RWD has communicated to the City and the City Council
(if by no other way than by RWD's briefs) that the Special Conditions at issue on reconsideration
(if not more conditions), are, in the opinion of RWD, "materially more restrictive or costly than
those specified in the Restatement [Host Agreement]." By letter agreement dated September 26,
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
5
2006 from the attorney for the City to RWD confirming the understanding of the parties to the
restated host agreement, RWD will not be obligated to go forward with the development and
construction of the expansion if the City and RWD cannot mutually agree on modifications to
the restated host agreement to address said "materially more restrictive or costly" special
conditions imposed by the City Council beyond the basic requirements set forth in the restated
host agreement. Application, Appendix C (1). The record is silent as to the purported increased
cost or expense caused by the subject Special Conditions.
The City Council decided that Special Conditions 13 and 23,
inter alia
, were necessary to
ensure that the design, location and operation of the expansion were protective of the public
health, safety and welfare, and this Board affirmed said decision. No contract is "perfect." The
restated host agreement was drafted prior to the siting hearing and the presentation of a
significant amount of evidence regarding the design, location and operations of the proposed
facility, and the past operating history of the operator, RWD. The local siting authority was
obligated to follow and apply Section 39.2 of the Act, and it properly did so, even in the face of
its own City Manager acting as the applicant. To now have a form of "expansion remorse"
because of a potential future cost modification between the City and RWD pursuant to the
restated host agreement should not and cannot undo the April 11, 2007 decision which rested not
on cost, but on being protective of the public health, safety and welfare. Allowing the Motions
to Reconsider would therefore be contrary to Section 39.2 of the Act.
II.
THE BOARD PROPERLY APPLIED THE APPLICABLE LAW IN
AFFIRMING SPECIAL CONDITION 23.
As the City consistently fails to acknowledge, “the county board or the governing body of
the municipality may also consider
as evidence
the previous operating experience and past
record of convictions or admissions of violations of the applicant (and any subsidiary or parent
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
6
corporation) in the field of solid waste management when considering criteria (ii) and (v) under
this Section.” 415 ILCS 5/39.2(e) (2006). The City Council states in its Motion for
Reconsideration, that the City, RWD, and the City Council all agreed - after the City Council had
made and reconsidered its "decision" - that there was no evidentiary support in the record for the
imposition of a fourteen (14) foot perimeter berm. However, the City Council fails to
acknowledge that the CCOC presented a plethora of evidence supporting the imposition of a
fourteen (14) foot perimeter berm. During the local pollution control facility siting public
hearings before the City Council, CCOC unveiled the poor operating history of RWD. Thus, the
City Council incorrectly concludes that “it was
undisputed
that the 14-foot perimeter berming
requirement had no evidentiary support.” (City Council’s Motion, ¶ 6) (emphasis added).
Rather, the CCOC aggressively disputed the argument that the fourteen (14) foot perimeter berm
had no support in the record.
Although no witness expressly testified that a fourteen (14) foot perimeter berm was
required, both Mr. Moose and Mr. Hilbert testified as to the poor operating history of RWD. The
City Council’s technical consultant, Patrick Engineering, Inc. (“Patrick Engineering”) and the
Hearing Officer considered the testimony of Mr. Moose and Mr. Hilbert regarding the abysmal
operating record of RWD in making their recommendations to the City Council. In addition, this
Board, as stated in its Order, considered the poor operating history of RWD in reaching its
decision.
In its Order, the Board expressly held, “In light of the recommendations from Patrick
Engineering and the hearing officer, the testimony of Mr. Moose,
and RWD’s operating
record
¸ the Board finds that Special Conditions 22 or 23 are not against the manifest weight of
the evidence.”
Rochelle Waste Disposal, L.L.C., v. The City of Rochelle,
PCB 07-113, slip op. at
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
7
p. 52 (January 24, 2008) (emphasis added). Although the parties seem to consciously disregard
the fact that the operating record of RWD is considered “evidence,” this Board properly applied
the applicable law in rendering its Opinion. Requiring a fourteen foot perimeter berm from an
operator who cannot even keep a proper perimeter fence, using instead only a three (3) foot wire
fence, is well justified.
III.
THE BOARD PROPERLY APPLIED THE APPLICABLE LAW IN
AFFIRMING SPECIAL CONDITION 13.
The City Council is not
seeking modification of Special Condition 13.
It is
incomprehensible that RWD and the City continue to dispute the imposition of Special Condition
13. As the City acknowledges, the Application expressly estimates that the exhumation would
take
five to ten years
. (Application, Section 2.6, 2.6-24; City’s Motion, p. 6) (emphasis added).
Special Condition 13 is within this time span, as six years is between five years and ten years.
The City argues that Special Condition 13 should be modified because it includes the term “good
cause,” which is not defined. However, “good cause” is a legal term. It is defined as “a legally
sufficient reason.” (BLACK’S LAW DICTIONARY 213 (7
th
ed. 1999)). Therefore, if RWD
determines that six (6) years is not a sufficient amount of time in which to exhume unit 1, and it
presents good cause for an extension of time to the City Council, the City Council must allow
RWD additional time for the exhumation. If the City Council denies RWD additional time,
RWD would have a legal cause of action against the City Council. In other words, the City
Council cannot legally deny RWD additional time if RWD provides good cause.
Again, the fact that RWD and the City are prematurely claiming that the exhumation
cannot occur within the allotted six (6) years should cause this Board to raise a suspicious
eyebrow. Given the uncertainty of what lies beneath unit 1, allowing flexibility by use of the
term “good cause” is completely justifiable. RWD should not be allowed to procrastinate in the
Electronic Filing - Received, Clerk's Office, March 11, 2008
Exhibit A
8
exhumation process if it can reasonably be completed within six (6) years. Furthermore, it
cannot be forgotten that RWD participated in the preparation of the application, and must have
known that the five to ten year time frame was expressly included.
CONCLUSION
WHEREFORE, CONCERNED CITIZENS OF OGLE COUNTY, respectfully pray that
the Illinois Pollution Control Board affirm the decision of The Rochelle City Council in
imposing Special Conditions 13 and 23, and for such other and further relief as is just and
proper.
Concerned Citizens of Ogle County
By
:
/s/ David L. Wentworth II
One of Their Attorneys
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams Street, Suite 360
Peoria, Illinois 61602-1320
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
Electronic Filing - Received, Clerk's Office, March 11, 2008