ILLINOIS POLLUTION CONTROL BOARD
April 3, 2003
MINERAL SOLUTIONS, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 03-39
(Permit Appeal – Land)
ORDER OF THE BOARD (by G.T. Girard):
On March 6, 2003, the Illinois Environmental Protection Agency (Agency) filed a motion
(Mot.) asking the Board to reconsider a January 23, 2003 opinion and order striking a contested
condition from a permit. On March 20, 2003, Mineral Solutions, Inc. (Mineral Solutions) filed a
response to the motion (Resp.). For the reasons discussed below, the Board denies the motion to
reconsider.
The Board will briefly summarize the arguments put forth by the Agency and Mineral
Solutions. The Board will then delineate the standard used by the Board in ruling on motions to
reconsider and the Board’s reasons for denial.
MOTION FOR RECONSIDERATION
The Agency asks the Board to reconsider because the Board “erred in failing to
acknowledge, consider and discuss all arguments raised” by the Agency. Mot. at 2. The Agency
maintains that the Board “neglected to consider an argument in” the Agency’s post-hearing
response brief.
Id
. Specifically, the Agency maintains that the Board did not discuss the
Agency’s argument which addressed the possibility that the Board might find that the fly ash
received at the Indian Creek Landfill was not a waste.
Id
. The Agency’s argument was that if
the Board found that the fly ash received in 1996 was not waste then Mineral Solutions was an
on-site manufacturing process generating waste. Mot. at 3. The Agency asserts that such
activity is exempt from the permitting process under Section 21(d) of the Environmental
Protection Act (Act) (415 ILCS 5/21(d) (2002)).
Id
.
The Agency argues that since the Board’s finding was that the material accepted in 1996
was not waste, failing to address the Agency’s argument “was tantamount to conceding the
appeal to Mineral Solutions without having heard” the Agency’s argument on that key point.
Mot at 2. The Agency argues that if the case is appealed to the appellate court it would be
advantageous to all parties if a “complete discussion and analysis of the parties’ arguments were
present for review.” Mot. at 4. The Agency submits that failure to “consider” the Agency’s
argument was error. Therefore the Agency argues that the Board should reconsider the January
2
23, 2003 opinion and order to either reverse the Board’s decision or at a minimum discuss the
Agency’s argument.
Id
.
RESPONSE TO THE MOTION TO RECONSIDER
Mineral Solutions argues that the Agency’s motion is based on a “mistaken belief” that
the Board failed to consider an Agency argument because the argument was not mentioned in the
Board’s opinion. Resp. at 1. Mineral Solutions states that this “fallacy is made even the more
egregious when one considers that the location of [the argument on] this allegedly ‘key point’.”
Id
. Mineral Solutions states that the “key point” was “buried” in the middle of arguments in the
response brief and was not raised in the letter or the Agency’s original brief.
Id
. Mineral
Solutions asserts that the argument “should have remained buried since it is inconsistent with
positions already taken” by the Agency in this “permit review and in previous permit reviews
regarding this facility.”
Id
.
Mineral Solutions also argues that the Board did not “neglect any duty” in issuing the
opinion. Resp. at 2. Mineral Solutions asserts that the Agency has not identified any legal
obligation or requirement that the Board failed to apply. Conversely, Mineral Solutions
maintains that the Agency did neglect to act in that the Agency’s failure to include in the letter
the “perceived applicability of Section 21(d) of the Act” was a failure to meet a legal
requirement. Resp. at 2. Mineral Solutions argues that the Board must confine the Board’s
considerations to the decision of the Agency (Resp. at 2, citing Illinois Environmental Protection
Agency v. Illinois Pollution Control Board 86 Ill. 2d 390, 405 (1981)) and the Agency’s failure
to include Section 21(d) of the Act as a reason for the condition on the permit means the Board
need not consider the argument. Resp. at 2-3.
DISCUSSION
In ruling on 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. In Citizens Against Regional Landfill v. County Board of Whiteside, PCB 93-
156 (Mar. 11, 1993), we observed that "the 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
hearing, changes in the law or errors in the court's previous application of the existing law.”
Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st
Dist. 1992). For the following reasons, the Board finds that the Agency’s motion to reconsider
presents the Board with no new evidence, change in the law, or other reason to conclude that the
Board’s January 23, 2003 decision was in error. Therefore the motion to reconsider is denied.
The law is clear that the Agency’s letter frames the issues on appeal. ESG Watts, Inc. v.
PCB, 286 Ill. App. 3d 325, 676 N.E.2d 299 (3rd Dist. 1997). In this case the Agency issued a
permit that was conditioned on Mineral Solutions receiving siting approval and a new operating
permit because “the last time Indian Creek Landfill ‘accepted waste disposal’ was more than five
years prior” to the receipt of the application for temporary suspension of waste acceptance. R. at
0003. This was the only condition challenged and the issue as framed by the Agency’s letter was
what constitutes “accepted waste disposal” under the facts of this case. The Board’s January 23,
3
2003 opinion analyzed the arguments regarding what constitutes “accepted waste disposal” and
found that the Agency’s condition was not necessary to meet the purposes of the Act.
The Board did review, but did not and will not discuss, the Agency’s hypothetical
argument that is unrelated to the issue as framed by the Agency’s letter. The law requires the
Board to review the Agency’s decision to determine if conditions imposed by the Agency are
necessary to meet the purposes of the Act.
See
415 ILCS 5/40 (a)(1) (2002); 35 Ill. Adm. Code
Section 105.204(a); Browning-Ferris Industries of Illinois, Inc. v. PCB, 179 Ill. App. 3d 598, 534
N.E. 2d 616, (2nd Dist. 1989) and John Sexton Contractors Company v. Illinois (Sexton), PCB
88-139 (Feb. 23, 1989). Further, the Act requires that the Board make final decisions on permit
appeals in 120 days (
See
415 ILCS 5/40(a)(3) (2002)) and at most that final decision need only
be a written decision stating the facts and reasons leading to the decision (415 ILCS 5/33(a)
(2002) and 5 ILCS 100/10-50(a) (2002)). Neither the Act nor case law requires that the Board
discuss
every
argument raised before the Board and the Board sees no reason here to do so.
CONCLUSION
The Board finds that the Agency’s motion to reconsider presents the Board with no new
evidence, change in the law, or other reason to conclude that the Board’s January 23, 2003
decision was in error. Therefore the motion to reconsider is denied.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/31(a) (2002));
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on April 3, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
