BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL,
L.L.c.,
Petitioner,
v.
THE CITY OF ROCHELLE, an Illinois
municipal corporation, and THE
ROCHELLE CITY COUNCIL,
Respondents.
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PCB 07-113
(Third-Party Pollution Control Facility
Siting Appeal)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that
on March 5, 2008, the undersigned electronically filed
with the Clerk
of the Illinois Pollution Control Board ROCHELLE CITY COUNCIL'S
MOTION TO RECONSIDER in the above entitled matter, a copy ofwhich is attached hereto.
ROCHELLE CITY COUNCIL
By: /s/
Donald
J.
Moran
One of Its Attorneys
Donald
J. Moran
Lauren Blair
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, illinois 60601
(312) 641-6888
Attorney Registration No. 1953923
474931.1
Electronic Filing - Received, Clerk's Office, March 5, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
THE CITY OF ROCHELLE, an Illinois
municipal corporation, and THE
ROCHELLE CITY COUNCIL,
PCB 07-113
(Third-Party Pollution Control Facility
Siting Appeal)
Respondents.
Petitioner,
v.
ROCHELLE WASTE DISPOSAL, L.L.C., )
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ROCHELLE CITY COUNCIL'S MOTION TO RECONSIDER
Respondent, Rochelle City Council ("City Council"), by its attorneys, Pedersen
&
Houpt,
and pursuant to Sections 101.520 and 101.902
ofthe lllinois Pollution Control Board ("Board")
Procedural Rules ("Rules"), moves the Board to reconsider and modify that portion
of its ruling
in the January
24,2008 Opinion and Order ("Opinion") affirming Special Condition 23.
In
support thereof, the City Council states as follows:
1.
In
the Opinion, the Board,
inter alia,
affmned Special Condition 23 imposing a
14-foot perimeter berm requirement.
2.
The Board gave no explanation
or basis to support this ruling. Rather, the Board
lumped the grounds for its affirmance
of Special Condition 23 with its affirmance of Special
Condition 22 for operational screening berms, which was based
on the generalized testimony of
Mr. Devin Moose regarding operational screening berms (he testified that operational screening
berms can help to screen operations from view as well as control litter).
See Rochelle Waste
Disposal,
L.L.c.
v.
The City ofRochelle,
PCB 07-113, slip op. at p. 52 (January 24,2008).
3.
The Board affirmed Special Condition 23 despite the fact that neither the
applicant, the City
ofRochelle ("City"), nor the operator, Rochelle Waste Disposal, LLC
474806vl
Electronic Filing - Received, Clerk's Office, March 5, 2008
(RWD"), nor the City Council dispute the fact that there is no evidentiary support
in
the record
for the imposition
of a 14-footperimeter berm in order to satisfy criterion (ii) of Section 39.2(a)
of the Illinois Environmental Protection Act ("Act").
Id.,
PCB 07-113, slip op. at pp. 34-37.
4.
In
reviewing a condition to a site location approval, the Board must determine
whether the condition is reasonable and necessary to accomplish the purposes
of the Act.
See
415 ILCS 5/39.2(e);
see also Peoria Disposal Co.,
v.
Peoria County Board,
PCB No. 06-184,
slip op. at 14 (December 7, 2006). The Board also must apply its technical expertise in
examining the record to determine
if the decision to impose the condition is supported by the
record.
See Town
&
Country Utilities, Inc.
v.
Illinois Pollution Control Board,
225 Ill. 2d 103,
123-24,866 N.E.2d 227,238-39 (2007).
5.
A motion to reconsider is proper where it seeks to bring to the Board's attention
clear errors in the Board'sapplication
of the law.
See Korogluyan
v.
Chicago Title
&
Trust Co.,
213 Ill. App. 3d 622,627,572 N.E.2d 1154, 1158 (1st Dist. 1992).
6.
This Motion asks the Board to reconsider whether
it correctly applied the proper
legal standard
of review when it affirmed the imposition of Special Conditions 23, even though it
was undisputed that the 14-foot perimeter berming requirement had no evidentiary support.
7.
No witnesses testified that a 14-foot perimeter
berm was necessary for this
particular facility. Mr. Moose specifically testified that he did not see the need for berms
surrounding the entire perimeter
of the facility, and that where they are necessary, the 8-foot
undulating berms proposed
by the applicant'sexpert, Mr. 1. Christopher Lannert, were sufficient:
On the bottom we increased the setback on Creston Road to about
400 feet from the waste boundary. That allowed us additional
buffering along Creston Road.
It
did allow us there to build
buffers and those buffers include, as Mr. Lannert talked about,
berms
of a minimum of 8-foot height but an undulating berm, not
just a row berm, but an undulating landscape berm and fence.
474806vl
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Electronic Filing - Received, Clerk's Office, March 5, 2008
(C-20 at p. 139; 1/24/07.)
8.
There is absolutely
no evidentiary support for the imposition of Special Condition
23.
On
the other hand, the record does support the modification of Special Condition 23 to
require an undulating perimeter berm 8 to 10 feet
in height with plant material on the top of the
benn, including plant material
in excess of6 feet in height. (C-20 at p. 92, 100, 139, 153;
1/22/07.)
WHEREFORE, Respondent, Rochelle City Council, respectfully requests that the Board:
A.
Reconsider that portion of its ruling in the Opinion and Order entered on January
24, 2008 affirming Special Condition 23 requiring a 14-foot perimeter berm;
B.
Apply the proper standard
ofreview and determine that the record does not
contain evidence sufficient to support the requirement
of a 14-foot perimeter benn;
C.
Modify Special Condition 23 to require an undulating perimeter berm 8 to 10 feet
in height with plant material on the top
of the berm, including plant material in excess of 6 feet in
height; and
D.
Grant such other and further
relief as the Board deems appropriate.
Respectfully submitted,
THE
ROCHELLE CITY COUNCIL
By:
/s/ Donald J. Moran
One
ofIts Attorneys
Donald J. Moran
Lauren Blair
Pedersen & Houpt,
P.e.
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
474806vl
3
Electronic Filing - Received, Clerk's Office, March 5, 2008
CERTIFICATE OF SERVICE
I, Donald J. Moran, an attorney, on oath certify that I caused to be served the foregoing,
ROCHELLE CITY COUNCIL'S MOTION TO RECONSIDER,
upon the following:
Bruce McKinney
City
of Rochelle
420
N.
6
th
Street
P.O. Box 601
Rochelle,
II.. 61068
bmckinney@rochelle.net
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago,
II.. 60601
hallorab@ipcb.state.il.us
John McCarthy
45 East Side Square, Suite
301
Canton, II.. 61520
jjmccarthy@winco.net
David Wentworth
IT
Emily Vivian
Hasselberg, Williams, Grebe, Snodgrass
&
Birdsall
124
SW Adams, Suite 360
Peoria,
II.. 61602-1320
dwentworth@hwgsb.com
evivian@hwgsb.com
Charles Helsten
Hinshaw
&
Culbertson
100 Park Avenue
Rockford,
II.. 61101
chelsten@hinshawlaw.com
nnelson@hinshawlaw.com
Alan Cooper
Rochelle City Attorney
233
E. Route 38, Suite 202
Rochelle,
II.. 61068
cooplaw@rochelle.net
David Tess
Tess
&
Redington
1090
N.
Seventh Street
P.O. Box 68
Rochelle,
II.. 61068
dtess@oglecom.com
via electronic mail before 5:00 p.m.
on this 5th day ofMarch, 2008.
/s/
Donald
J.
Moran
Donald J. Moran
474931.1
Electronic Filing - Received, Clerk's Office, March 5, 2008
