RECE~VED
CLERK’S OFFICE
)
)
)
)
)
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
VILLAGE OF ROBBNS and
ALLIED WASTE
TRANSPORTATION, INC.,
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
)
V.
Petitioner,
NOTICE
PCB No. 04-48
(Permit Appeal)
NOV 1 02004
STATE OF ILLINOIS
Pollution Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, II. 60601
Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
William Mansker
Village of Robbins
3327 West
137th
Street
Robbins, IL 60472
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a MOTION FOR LEAVE TO FILE INSTANTER and RESPONSE TO MOTION TO
RECONSIDER, copies of which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
JohnJ~Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: November 8, 2004
RECE~VED
CLERK’S OFFICE
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
VILLAGE OF ROBBNS and
)
Pollution Control Board
ALLIED WASTE
)
TRANSPORTATION, INC.,
)
Petitioner,
)
PCB No. 04-48
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR LEAVE TO FILE INSTANTER
A RESPONSE TO PETITIONER’S MOTION TO RECONSIDER
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.500, hereby requests that the Illinois Pollution
Control Board (“Board”) grant the Illinois EPA leave to file instanter a Response to Petitioner’s
Motion to Reconsider. In support ofthis motion, the Illinois EPA states as follows:
1.
The Petitioner, Village ofRobbins, filed a motion to reconsider with the Board on
October 19, 2004. Pursuant to
35
Iii. Adm. Code 101.520(b), a response to the motion to
reconsider is to be filed with the Board within fourteen (14) days after the filing ofthe motion.
Accordingly, the response was due on or before November 3, 2004. The
14th
day after the filing
was November 2, 2004, a State holiday. Pursuant to 35 Ill. Adm. Code 101.300(a), the next
business day (November 3, 2004) would then be the due date for the response.
2.
On November 3, 2004, the Illinois EPA filed a motion for extension of time by
which to file the Response to the Petitioner’s Motion to Reconsider. The Illinois EPA sought a
limited extension oftime of no more than two business days, or until November 5, 2004.
3.
Unfortunately, counsel for the Illinois EPA was unable to complete the Response
prior to the end ofbusiness on November
5,
2004.
1
4.
The Response that accompanies this motion is being mailed for filing on
November 8, 2004, which is less than one week after the original due date for the Response. The
Illinois EPA regrets any delay this filing may cause, but given the short time periods following
the due date it is likely that the delay will be slight, if any.
5.
The Illinois EPA is sending a courtesy facsimile copy of the pleadings filed on
this date to opposing counsel.
WHEREFORE, for the reasons stated above, the Illinois EPA •hereby respectfully
requests that the Board grant the Illinois EPA leave to file instanter the Response to Petitioner’s
Motion to Reconsider.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Res
dent
Jo
.
Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: November 8, 2004
This filing submitted on recycled paper.
2
REC~JVED
CLERK’S OFFtCE
BEFORE THE POLLUTION CONTROL BOARD
NOV
102004
OF THE STATE OF ILLINOIS
PollutionSTATE
OFControlILLINOISBoard
VILLAGE OF ROBB INS and
)
ALLIED WASTE
)
TRANSPORTATION, INC.,
)
Petitioner,
)
PCB No. 04-48
v.
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE TO PETITIONERS’ MOTION TO RECONSIDER
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35111. Adm. Code 101.500 and 101.520, hereby responds to the Motion
to Reconsider (“Petitioner’s motion” or “motion”) filed by the Petitioner, Village of Robbins
(“Village”). In response to the Petitioner’s motion, the Illinois EPA states as follows:
I. STANDARD OF REVIEW
In ruling on a motion for reconsideration, the Illinois Pollution Control Board (“Board”)
will consider factors including new evidence or a change in the law, to conclude the Board’s
decision was in error. 35 Ill. Adm. Code 101.902. In the case of Citizens Against Regional
Landfill v. County Board of Whiteside, PCB 93-156 (March 11, 1993), the Board noted 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 the 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).
Thus, in order to prevail on a motion to reconsider, the movant must demonstrate that one
ofthe three criteria has been met to justify reconsideration of an order. Here, the movant fails to
1
raise any meritorious argument that would warrant the Board’s reconsideration of its September
16, 2004 final order (“Board’s final order” or “final order”).
II. THE PETITIONER
RAISES NO NEW
FACTS OR EVIDENCE
Several ofthe arguments posited by the Petitioner relate to its belief that the Board failed
to properly consider information that was before the Board as of the date of the final order. For
example, the Petitioner argues that the Board should have given greater deference to the Village
of Robbins’ conclusion regarding the scope of the siting approval. Petitioner’s motion, p. 2.
This argument is essentially a claim that the Board should have given more weight to the
Certification of Siting Approval (“Certification”) issued by the Village. However, the Board did
acknowledge and address the Certification referred to by the Petitioner. That the Board’s
conclusion following its assessment of the weight, if any, due the Certification was contrary to
the Village’s is not sufficient grounds for reconsidering the final order.
Another argument raised by the Petitioner is that the Petitioners provided adequate proof
of local siting approval to the Illinois EPA and the Board in the form of permits issued to the
facility, the Certification and the Siting Authority Agreement (“Agreement”). Petitioner’s
motion, pp. 3, 5, 7. Again, the Petitioner is not arguing that the Board failed to consider those
documents and the facts related thereto. Rather, the Petitioner is simply not happy with the
conclusion that the Board reached following any appropriate consideration of those permits, the
Certification, and the Agreement.
The Board’s final order summarizes the Petitioners’
arguments, including those based on the permits, Certification and Agreement, thus
demonstrating that that information was clearly before the Board at the time ofits decision.
Similarly, the Petitioner argues that the Ordinance passed by the Village in 1993 supports
the Petitioner’s conclusion that the Board incorrectly interpreted the Ordinance. Petitioner’s
7
motion, p. 9. This is another example of the Petitioner attempting to re-argue issues that were
already raised and briefed prior to the Board reaching its decision on September
16th•
The
Ordinance was before the Board at the time of their decision, and therefore is not newly
discovered evidence.
III. THE PETITIONER RAISES
NO CHANGES IN
LAW
The Petitioner’s motion is not premised on any changes in applicable law since the date
ofthe Board’s decision.
IV. THE PETITIONER DOES NOT
RAISE ANY
SUCCESSFUL ARGUMENT THAT
THE BOARD MISAPPLIED THE RELEVANT LAW
The Petitioner attempts to make two arguments that the Board misapplied the relevant
law. An examination of each such argument, however, makes clear that there is no justification
for granting the Petitioner’s motion.
First, the Petitioner argues that the Board has not given sufficient deference to the
Village’s conclusion (as set forth in the Certification) regarding the scope ofthe siting approval.
Petitioner’s motion, p. 2. In support of that argument, the Petitioner cites to several well-known
cases for the proposition that the Board must accept a local siting authority’s determination
regarding matters related to siting approval unless the opposite conclusion is clearly evident,
plain or indisputable.
What the Petitioner does not make reference to is the fact that all the cases cited to
involve a review ofa decision to issue local siting approval, not the review of a Certification or
other advisory opinion-type document issued by the local unit of government after the siting
decision itself has been issued. The cases are thus clearly distinguishable in inapplicable since
the 1993 siting decision is not under appeal. The Board’s review of the present post-siting
decision facts is likewise not similar to the fact patterns ofthe cases cited by the Petitioner. No
3
case law cited to by the Petitioner stands for the proposition that the Board must give great (or
any) deference to a certification issued by a local unit of government well after the underlying
siting approval has been granted.
The second legal argument advanced by the Petitioner is that the Board misapplied
Section
39.2(e-5)
of the Illinois Environmental Protection Act (“Act”) (415 ILCS 5/39.2(e-5)).
Petitioner’s motion, pp. 8, 11. The Petitioner’s argument is that Section 39.2(e-5) of the Act
specifically allows for the type of modification that was put into place here, and thus the Board
should not read the Agreement for anything other than the prospect that there are no siting
problems with the proposed transfer station.
But that argument does not raise any sufficient grounds for reconsideration ofthe Board’s
decision. The Board’s decision took into account the very arguments raised~in the Petitioller’s
motion to reconsider, since they were also raised in the Petitioners’ pleadings prior to the
issuance of the final order. In other words, there are no reasons given as to why the Board
misapplied Section 39.2(e-5), other than the Board’s interpretation did not meld with that ofthe
Petitioners. The Board very clearly stated that the proposed change sought by the Petitioners
was not a mere change in condition, but rather a wholesale change in the very type of facility
contemplated. Final order, pp. 8-9. The Board correctly determined that Section
39.2(e-5)
could
not be used in the manner espoused by the Petitioners, since to do so would involve much more
than a mere change in conditions and would deprive members of the public an opportunity to
participate in the local siting process. Final order, p. 9.
4
V. CONCLUSION
The Petitioner’s arguments in its motion to reconsider are without merit and thus the
motion should be denied. There are no arguments presented in the motion that meet the criteria
that would warrant the Board’s reconsideration of its final order.
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully
requests that the Board deny the Petitioner’s motion.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9 143 (TDD)
Dated: November
8, 2004
This filing submitted on recycled paper.
5
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on November 8, 2004, I seryed true
and correct copies of a MOTION FOR LEAVE TO FILE INSTANTER and RESPONSE TO
MOTION TO RECONSIDER, by placing true and correct copies in properly sealed and
addressed envelopes and by depositing said sealed envelopes in a U.S. mail drop box located
within Springfield, Illinois, with sufficient First Class Mail postage affixed thereto, upon the
following named persons:
Dorothy M. Gunn, Clerk
Illinois
Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles F. Helsten
Hinshaw &
Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL
61105-1389
Bradley
P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
William Mansker
Village ofRobbins
3327 West
137th
Street
Robbins, IL 60472
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Assistant Counsel
