ILLINOIS POLLUTION CONTROL BOARD
June 7, 2007
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)
______________________________________
CONCERNED CITIZENS OF OGLE
COUNTY,
Petitioner,
v.
THE CITY OF ROCHELLE, THE CITY
COUNCIL OF THE CITY OF ROCHELLE,
and ROCHELLE WASTE DISPOSAL, L.L.C.,
Respondents.
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PCB 07-116
(Third-Party Pollution Control Facility
Siting Appeal)
ORDER OF THE BOARD (by A.S. Moore):
The Board received two separate third-party petitions seeking the Board’s review of an
April 11, 2007 decision of the City of Rochelle (the City) to grant with conditions an application
to expand the Rochelle Municipal Landfill in Rochelle, Ogle County. For the reasons set forth
below, the Board accepts the two petitions and on its own motion consolidates them for hearing.
ROCHELLE WASTE DISPOSAL’S PETITION
On May 16, 2007, Rochelle Waste Disposal, L.L.C. (RWD) timely filed a petition asking
the Board to review an April 11, 2007 decision of the City.
See
415 ILCS 5/40.1(a) (2004); 35
Ill. Adm. Code 107.204. The City granted with conditions the City’s application to expand the
Rochelle Municipal Landfill.
Section 40.1(b) of the Environmental Protection Act (Act) allows specified third parties
to appeal a local government decision granting approval to site a pollution control facility. 415
ILCS 5/40.1(b) (2004). Third parties who participated in the local government’s public hearing
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and who are so located as to be affected by the proposed facility may appeal the siting decision
to the Board.
Id
.; 35 Ill. Adm. Code 107.200(b). The petition for review must, among other
things, specify the grounds for appeal and include a copy of the local government’s siting
decision. 35 Ill. Adm. Code 107.208. The third party must file the petition within 35 days after
the local government approves siting. 415 ILCS 5/40.1(b) (2004); 35 Ill. Adm. Code 107.204.
Unless the Board determines that the third party’s petition is “duplicative or frivolous,” the
Board will hear the petition. 415 ILCS 5/40.1(b) (2004); 35 Ill. Adm. Code 107.200(b).
RWD’s petition states that it is the current operator of the Rochelle Municipal Landfill
and, under the terms of a host agreement executed with the City, would continue to operate an
expanded facility. RWD’s petition asserts that RWD was a participant in the local siting
proceeding. RWD also asserts that it filed a motion to reconsider the City Council’s siting
approval, which the City Council denied. RWD appeals on the grounds that the final action
taken by the City is contrary to the express terms of the host agreement executed between RWD
and the City relating to such proposed expansion and is therefore fundamentally unfair. RWD
also appeals on the grounds that Conditions 8, 13, 22, 23, 26, 28, 33, and 34 attached to the
City’s approval are not reasonable and necessary to accomplish the purposes of Section 39.2 of
the Act (415 ILCS 5/39.2 (2004)) and are inconsistent with Board regulations. RWD attached to
its petition a copy of the City’s April 11, 2007 siting decision. As RWD filed that petition on
May 16, 2007, it did so within 35 days of the City’s decision. RWD’s petition meets the content
requirements of 35 Ill. Adm. Code 107.208.
An action before the Board is duplicative if it is “identical or substantially similar to one
brought before the Board or another forum.” 35 Ill. Adm. Code 101.202. An action before the
Board is frivolous if it is “a request for relief that the Board does not have the authority to grant”
or “fails to state a cause of action upon which the Board can grant relief.”
Id
. No evidence
before the Board indicates that RWD’s action is duplicative or frivolous. The Board accepts
RWD’s third-party petition for hearing.
CONCERNED CITIZENS OF OGLE COUNTY’S PETITION
Also on May 16, 2007, Concerned Citizens of Ogle County (CCOC) timely filed a
petition asking the Board to review the April 11, 2007 decision of the City to grant with
conditions RWD’s application to expand the Rochelle Municipal Landfill.
See
415 ILCS
5/40.1(a) (2004); 35 Ill. Adm. Code 107.204.
Section 40.1(b) of the Act allows specified third parties to appeal a local government
decision granting approval to site a pollution control facility. 415 ILCS 5/40.1(b) (2004). Third
parties who participated in the local government’s public hearing and who are so located as to be
affected by the proposed facility may appeal the siting decision to the Board.
Id
.; 35 Ill. Adm.
Code 107.200(b). The petition for review must, among other things, specify the grounds for
appeal and include a copy of the local government’s siting decision. 35 Ill. Adm. Code 107.208.
The third party must file the petition within 35 days after the local government approves siting.
415 ILCS 5/40.1(b) (2004); 35 Ill. Adm. Code 107.204. Unless the Board determines that the
third party’s petition is “duplicative or frivolous,” the Board will hear the petition. 415 ILCS
5/40.1(b) (2004); 35 Ill. Adm. Code 107.200(b).
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CCOC’s petition states that it is a voluntary association of citizens that has been
adversely affected by the City’s decision. CCOC’s petition further states that it participated
actively in the local pollution control facility hearings by cross-examining witnesses and offering
affirmative evidence in opposition to the application for siting approval. The petition specifies
that CCOC appeals on the grounds that the proceedings of the Rochelle City Council were not
fundamentally fair and that the City Council’s findings that RWD had proven siting criteria i, ii,
iii, and vi were against the manifest weight of the evidence.
See
415 ILCS 5/39.2(a) (2004).
Although CCOC states in its petition that it has attached a copy of the City’s April 11, 2007
siting decision, the Board notes that the copy was not in fact included with CCOC’s electronic
filing of its petition. However, the Board received a copy of this document in PCB 07-113,
Rochelle Waste Disposal, L.L.C. v. The City of Rochelle and the Rochelle City Council. The
Board therefore regards the omission as harmless error and no basis to reject CCOC’s petition.
As CCOC filed that petition on May 16, 2007, it did so within 35 days of the City’s decision.
CCOC’s petition meets the content requirements of 35 Ill. Adm. Code 107.208.
An action before the Board is duplicative if it is “identical or substantially similar to one
brought before the Board or another forum.” 35 Ill. Adm. Code 101.202. An action before the
Board is frivolous if it is “a request for relief that the Board does not have the authority to grant”
or “fails to state a cause of action upon which the Board can grant relief.”
Id
. No evidence
before the Board indicates that CCOC’s action is duplicative or frivolous. The Board accepts
CCOC’s third-party petition for hearing.
CONSOLIDATION
On its own motion, the Board consolidates these two appeals for hearing. Both petitions
involve the same burden of proof and address common issues and respondents. Thus, for
reasons of administrative economy, consolidation is appropriate.
See
35 Ill. Adm. Code 101.406.
HEARING AND DECISION DEADLINE
Petitioners have the burden of proof. 415 ILCS 5/40.1(a) (2004);
see also
35 Ill. Adm.
Code 107.506. The record before the City will be the exclusive basis for all hearings, except
concerning issues of fundamental fairness or jurisdiction. 415 ILCS 5/40.1(b) (2004). Hearings
will be scheduled and completed in a timely manner, consistent with the decision deadline (
see
415 ILCS 5/40.1(a) (2004)), which only the City may extend by waiver (35 Ill. Adm. Code
107.504;
see also
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the
decision deadline, the City “may deem the site location approved.” 415 ILCS 5/40.1(a) (2004).
Currently, the decision deadline is September 13, 2007, the 120th day after May 16, 2007.
See
35 Ill. Adm. Code 107.504. The Board meeting immediately before the decision deadline is
scheduled for September 6, 2007.
ADMINISTRATIVE RECORD
The City must file the entire record of its proceedings within 21 days after the date of this
order. The record must comply with the content and certification requirements of 35 Ill. Adm.
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Code 107.304, 107.308. Because CCOC “is a citizens’ group that participated in the siting
proceeding and is so located as to be affected by the proposed facility,” it is “exempt from
paying the costs of preparing and certifying the record.” 415 ILCS 5/39.2(n) (2004); 35 Ill.
Adm. Code 107.306. However, RWD must pay to the City the cost of preparing and certifying
the record. 415 ILCS 5/39.2(n) (2004); 35 Ill. Adm. Code 107.306;
see also
35 Ill. Adm. Code
107.502(b).
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on June 7, 2007, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
