472041.6
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY,
)
and SIERRA CLUB,
)
)
Co-Petitioners,
)
)
v.
)
PCB 07-84
)
(Pollution Control Facility
CITY OF MADISON, and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
NOTICE OF FILING
See attached Service List.
PLEASE TAKE NOTICE that on February 1, 2008, the undersigned electronically filed with
the Clerk of the Illinois Pollution Control Board
WASTE MANAGEMENT OF ILLINOIS,
INC.'S RESPONSE TO PETITIONER'S MOTION FOR RECONSIDERATION,
in the above
entitled matter, a copy of which is attached hereto.
WASTE MANAGEMENT OF ILLINOIS, INC.
By: /s/
Lauren Blair
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
Electronic Filing - Received, Clerk's Office, February 1, 2008
1
The May 2009 date referenced in the Motion to Reconsider is entirely speculative. It was taken
from a draft report, entitled "Southwestern Illinois Flood Prevention Initiative" that was prepared
by the East-West Gateway Council of Governments (attached to Petitioners' Motion to Reconsider
as Exhibit 4), and is simply the date by which the final flood insurance maps are "predicted" to be
finalized by the Federal Emergency Management Agency ("FEMA"). (
See
Pet. Ex. 4, pp. 3, 36.)
472041.6
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERICAN BOTTOM CONSERVANCY, and
)
SIERRA CLUB,
)
)
Petitioners,
)
PCB 07-84
)
v.
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
CITY OF MADISON, ILLINOIS, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
WASTE MANAGEMENT OF ILLINOIS, INC.'S RESPONSE TO
PETITIONERS' MOTION FOR RECONSIDERATION
Respondent, Waste Management of Illinois, Inc. ("WMII"), submits this response to the
Motion to Reconsider Order of December 6, 2007 ("Motion to Reconsider") filed by Petitioners,
American Bottom Conservancy and Sierra Club ("Petitioners").
INTRODUCTION
Petitioners have requested that the Illinois Pollution Control Board ("Board") reconsider its
December 6, 2007 Order affirming the City of Madison's ("City") decision granting site location
approval for the expansion of the existing Milam Recycling and Disposal Facility ("North Milam"
or "Facility"). The basis for the Motion to Reconsider is the allegation that "new facts" exist
concerning the speculation that by May 2009
1
, the area where North Milam is located will be
determined to be within a 100-year floodplain and that the Facility is, therefore, not "flood-proofed."
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
3
Petitioners argue that, based on this information, criteria (ii) and (iv) of Section 39.2(a) of the
Illinois Environmental Protection Act ("Act") were not met. (
See
Motion to Reconsider, pp. 2-3,
ΒΆΒΆ 7-10.)
The Motion to Reconsider should be denied for the following reasons. On appeal, Petitioners
argued that the City's decision was against the manifest weight of the evidence only with respect to
criteria (i) and (iii), not criteria (ii) and (iv), and therefore, any argument concerning criteria (ii) and
(iv) has been waived. Furthermore, information about the potential future de-accreditation of levees
is not newly discovered information because it was available at the time of the hearing (in fact,
Petitioners submitted similar information as public comment). Even assuming Petitioners' argument
was not waived and the information was newly discovered, the submitted information is not
probative: it is mere speculation about the possibility for future de-accreditation of certain levees
located in Madison, St. Clair and Monroe Counties, and it does not establish, even if de-
accreditation should occur, that the Facility lies within the 100-year floodplain or has not been flood-
proofed. Hence, the Motion to Reconsider is baseless, and should be denied.
ARGUMENT
A motion to reconsider is proper only if it seeks to bring to the court's attention newly
discovered evidence that was not available at the time of the hearing, changes in the law, or clear
errors in the court's previous application of existing law.
See Korogluyan v. Chicago Title & Trust
Co.
, 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1992). Petitioners here do not
argue a change in the law or an erroneous application of existing law. Rather, Petitioners improperly
attempt to raise for consideration by the Board two entirely new arguments based upon speculative
information that was available at the time of the hearing. The Motion to Reconsider should be
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
4
denied because Petitioners have failed to meet the legal standard for reconsideration.
I.
PETITIONERS CANNOT SEEK A REVIEW OF CRITERION (ii) AND CRITERION
(iv) IN A MOTION TO RECONSIDER BECAUSE THOSE CRITERIA WERE NOT
CHALLENGED ON APPEAL
A party cannot raise new arguments in a motion to reconsider that could have been raised
before the decision in the case, but were not.
North River Insurance Co. v. Grinnell Mutual
Reinsurance Co.
, 369 Ill. App. 3d 563, 572-73, 860 N.E.2d 460, 468-69 (1st Dist. 2006);
McLean
County Disposal Co., Inc. v. County of McLean
, PCB 89-108, slip op. at 6 (January 11, 1990). The
only criteria that Petitioners formally and fully presented to the Board for review were criteria (i)
and (iii).
As stated by the Board in its December 6, 2007 Order:
Petitioners appeal on the grounds that the City conducted the siting
proceeding in a manner that was fundamentally unfair, and that the
City's determination was contrary to the manifest weight of the
evidence with respect to
two
siting criteria in Section 39.2(a) of the
[Act].
See American Bottom Conservancy v. City of Madison
, slip op. at 1, PCB 07-84 (December 6, 2007).
(Emphasis added.) Those two criteria appealed were criterion (i) concerning the need for the
facility, and criterion (iii) concerning the compatibility of North Milam with the character of the
surrounding area.
Id.
, slip op. at 3, 31-63. After thoroughly considering the arguments raised by
the parties herein and the evidence relating to those arguments, the Board concluded:
[P]etitioners have failed to prove that the City's siting procedures
were fundamentally unfair, or that the City's determinations on siting
criteria (i) and (iii) of Section 39.2(a) of the Act were contrary to the
manifest weight of the evidence. Therefore, the Board affirms the
City's decision granting siting approval to Waste Management for
North Milam.
Id.
, slip op. at 63.
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
5
In the Motion to Reconsider, Petitioners now argue, for the first time, that the City's findings
that criteria (ii) and (iv) were satisfied are against the manifest weight of the evidence. Because
criteria (ii) and (iv) were not raised on appeal, however, any arguments with regard to those criteria
have been waived and cannot be the subject for reconsideration.
See North River Insurance Co.
, at
572-73, 860 N.E.2d at 468-69. In
North River Insurance Co.
, the defendant's insured, a general
contractor, contracted with plaintiff's insured, a subcontractor, to perform work on a construction
project. An individual was injured during the project and sued. The general contractor tendered its
defense to the subcontractor's primary insurer and a settlement was entered. The defendant was
ordered by the trial court to reimburse the primary insurer. On a motion to reconsider, the defendant
contended that the trial court erred by making a
de facto
finding of fact with regard to its allocation
of fault by requiring it to reimburse the full amount without first conducting a hearing on its
proportionate liability. The appellate court held that the defendant had waived any such argument
since it did not raise the issue of liability apportionment until its motion to reconsider.
Id.
Similarly, here, Petitioners did not raise any attack on the City's findings with respect to
criteria (ii) and (iv) until the instant Motion to Reconsider. It is axiomatic that Petitioners cannot
ask the Board to "reconsider" an issue that was never raised with the Board on appeal, and thus
never considered in the first instance. Because Petitioners did not argue criteria (ii) and (iv) until
the instant motion to reconsider, they have waived the issue and the Motion to Reconsider could,
and should, be denied on this basis alone.
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
6
II.
PETITIONERS' SUBMISSION IS NOT NEWLY DISCOVERED EVIDENCE
Petitioners incorrectly assert that the information concerning the possible future de-
accreditation of certain levees in the Madison, St. Clair and Monroe counties is newly discovered
evidence. Newly discovered evidence, however, is evidence that was not available prior to the
hearing.
North River Insurance Co.
, 369 Ill. App. 3d at 572-73, 860 N.E.2d at 468-69. The
information submitted in support of Petitioners' Motion to Reconsider was available prior to the
hearing date, and in fact, very similar information was presented by Petitioners as public comment.
The hearing date in this matter was August 23, 2007. Petitioners' own public comment
materials show that information about possible de-accreditation was available as early as April 15,
2007. (
See
Public Comment #19, #29.) In a public comment submitted on September 19, 2007, by
Kathy Andria, President of American Bottom Conservancy, she states that:
On August 15, 2007
, the U.S. Army Corps of Engineers (USACE)
and the Federal Emergency Management Agency (FEMA) held a
Levee Summit at Alton to report the important findings with regard
to Metro East Corps levees in place to protect the floodplain from the
Mississippi River. ...
At the August 15 meeting, FEMA indicated that residents and
businesses located in the floodplain would be required to obtain flood
insurance.
This is the same floodplain where Waste management proposes to
construct yet another new landfill.
(
See
Public Comment #29, p. 1.) (Emphasis added.) Similarly, in a public comment submitted on
September 17, 2007, by Jack Norman, Sierra Club Member, he attached a three-page memo on
"Levee and Flood Control Issues in Illinois" and stated that "[t]his memo further illuminates the
subjects considered at the
August 15
Illinois Levee Summit." (
See
Public Comment #19, p. 1.)
Electronic Filing - Received, Clerk's Office, February 1, 2008
2
The draft report entitled "Southwestern Illinois Flood Prevention Initiative," prepared by the East-
West Gateway Council of Governments also indicates that this information was available as early
as August 15, 2007, when Congressman Jerry Costello convened an Illinois Levee Summit onboard
the U.S. Army Corps of Engineers Motor Vessel Mississippi for the purpose of providing an
overview of the levee systems in the St. Louis region and describing levee deficiencies and flood
risks for five levee systems in the Illinois area of the region. (
See
Pet. Ex. 4, p. 1.)
472041.6
7
(Emphasis added.)
2
Thus, while Petitioners claim that this information is "new," it was clearly available as of
August 15, 2007, eight days prior to the hearing, but simply was not presented by Petitioners at that
time. The purpose of a motion for reconsideration is not to add evidence that could have been
produced earlier.
North River Insurance Co.
, 369 Ill. App. 3d at 572-73, 860 N.E.2d at 468-69. As
articulated by the appellate court in
North River Insurance Co.
, "[t]rial courts should not allow
litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that
the court erred in its ruling."
Id.
The Board, too, has held that it will not act lightly and reopen a proceeding to consider
matter submitted after the close of record, even to the extent that it purports to present new
information, absent a compelling reason as to why such information could not have been presented
before the close of the record.
See In the Matter of: Proposed Site-Specific Rule Change for the City
of East Moline's Public Water Supply Treatment Plant Discharge
, R87-35, slip op at 4, (May 10,
1990). The record here has been closed. The Board made its decision affirming site location
approval based on the record. Petitioners have not articulated any reason for their failure to present
the information as to potential de-accreditation before now. The Motion to Reconsider should be
denied because the supporting information is not new and no compelling reason was given for the
delay in presenting it for consideration.
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
8
III.
THE POSSIBILITY OF FUTURE DE-ACCREDITATION OF CERTAIN LEVEES
IS SPECULATION, AND NOT PROBATIVE
In addition, the Motion to Reconsider should be denied because it is based exclusively on
speculation and is probative of nothing. The entire basis for Petitioners' new argument that criteria
(ii) and (iv) were not met is the possibility of future de-accreditation of certain levees in the
Madison, St. Clair and Monroe counties that is predicted to occur in May 2009. In support of this
argument, Petitioners rely on a draft report entitled "Southwestern Illinois Flood Prevention
Initiative," prepared by the East-West Gateway Council of Governments, that discusses the possible
de-accreditation of levees in the Madison, St. Clair and Monroe counties over a year from now. The
report itself demonstrates the highly speculative nature of the potential for any future de-
accreditation.
The report does not state that de-accreditation of all levees will definitely occur in May 2009,
but only discusses that de-accreditation
could
occur and that it is currently predicted to occur in May
2009. There is no certainty that this event will happen at all. In fact, the report itself calls for a plan
to prevent the de-accreditation of levees in the Madison, St. Clair and Monroe counties.
Specifically, the report recommends that an application should be made to FEMA by January 30,
2008, for "Restoration Zone" or "AR Zone" status. (
See
Pet. Ex. 4, p. iv.) The report explains that:
The AR Zone status is a transitional designation that recognizes that
the area has been adequately protected from flooding in the past and
is now in a transitional process to restore protection. The AR Zone
designation confirms there is a plan to restore the levees and also
provides significant relief in the insurance rates and requirements for
new development. Further, it will signal that there is a plan in place
that will fully restore adequate flood protection within ten years.
(
See
Pet. Ex. 4, p. 35.)
The report also discusses the development of a ten-year plan to restore the flood protection
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
9
system in the area, the retention of expert assistance to advise on legal, financial and engineering
design and construction issues, and the securing of funding. (
See
Pet. Ex. 4, pp. 36-37.) In short,
the report recognizes that the area at issue has been adequately protected from flooding, and sets
forth a detailed plan to restore the levees to provide better protection. Thus, the report that
Petitioners rely on actually underscores the speculative nature of de-accreditation of the levees.
Beyond the speculative information provided, Petitioners have not put forth any reliable
evidence that the levees in the Madison, St. Clair and Monroe counties will, in fact, be de-
accredited. The mere possibility of a future event is insufficient to support a motion for
reconsideration.
See North River Insurance Co.
, 369 Ill. App. 3d at 573, 860 N.E.2d at 469 (motion
to reconsider liability apportionment was properly denied where it was based on the defendant's
speculation that another party could have been found mostly or entirely at fault in the underlying
lawsuit). Even if they were de-accredited, that event does not establish that the Facility would fall
within the 100-year flood plain, or that the Facility would not be flood-proofed. Thus, the Motion
to Reconsider should be denied on this basis as well.
CONCLUSION
For the reasons set forth above, Petitioners' Motion to Reconsider lacks any merit and should
be denied.
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
10
WHEREFORE, Respondent, WASTE MANAGEMENT OF ILLINOIS, INC.,
respectfully requests that the Board DENY Petitioners' Motion to Reconsider Order of December
6, 2007, and grant such other relief that it deems fair and appropriate.
Respectfully submitted,
WASTE MANAGEMENT OF ILLINOIS, INC.
By: /s/
Lauren Blair
One of Its Attorneys
Donald J. Moran
Lauren Blair
Pedersen & Houpt, P.C.
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Electronic Filing - Received, Clerk's Office, February 1, 2008
472041.6
11
CERTIFICATE OF SERVICE
I, Lauren Blair, an attorney, on oath state that I caused a copy of the foregoing
WASTE
MANAGEMENT OF ILLINOIS, INC.'S RESPONSE TO PETITIONER'S MOTION FOR
RECONSIDERATION
to be served on the following parties:
Bruce A. Morrison
Kathleen G. Henry
Great Rivers Environmental Law Center
705 Olive Street, Suite 614
St. Louis, MO 63101-2208
bamorrison@accessus.net
John T. Papa
Callis, Papa, Hale, Szewczyk & Danzinger
1326 Niedringhaus Avenue
Granite City, IL 62040
Veronica@callislaw.com
Carol Webb
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
webbc@ipcb.state.il.us
via electronic delivery and by depositing same in the U.S. mail with proper postage paid at
161 N. Clark St., Chicago, Illinois 60601, on or before 5:00 p.m. on this 1
st
day of February,
2008 to the addresses indicated above.
/s/
Lauren Blair
Lauren Blair
Electronic Filing - Received, Clerk's Office, February 1, 2008