ILLINOIS POLLUTION CONTROL BOARD

BACKGROUND ON THE BOARD PROCEEDING
MOTION AND RESPONSES

February 21, 2008

AMERICAN BOTTOM CONSERVANCY

and SIERRA CLUB,

Petitioners,

CITY OF MADISON, ILLINOIS, and

WASTE MANAGEMENT OF ILLINOIS,

(Third-Party Pollution Control Facility

Siting Appeal)

ORDER OF THE BOARD (by T.E. Johnson):

On December 6, 2007, the Board affirmed the decision of the City of Madison (City) to

approve the landfill siting application of Waste Management of Illinois, Inc. (Waste

Management). The City granted siting for an expansion of Waste Management’s Milam

Recycling and Disposal Facility. The expansion, called “North Milam,” is to be located in the

City of Madison, Madison County. American Bottom Conservancy and Sierra Club (petitioners)

had sought Board review of the City’s decision to grant siting. In a motion filed on January 18,

2008, petitioners ask the Board to reconsider the December 6, 2007 decision affirming the City.

Waste Management and the City filed responses opposing petitioner’s motion on February 1 and

4, 2008, respectively.

For the reasons below, the Board denies petitioners’ motion to reconsider. In this order,

the Board first provides background on the proceeding. Then the Board discusses the pleadings

before ruling on the motion.

BACKGROUND ON THE BOARD PROCEEDING

Petitioners appealed to the Board on March 13, 2007. On March 15, 2007, the Board

accepted the petition for hearing. Petitioners challenged the City’s grant of siting 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 of Section 39.2(a) of the Environmental Protection Act (Act): siting criterion (i)

(“the facility is necessary to accommodate the waste needs of the area it is intended to serve”);

and siting criterion (iii) (“the facility is located so as to minimize incompatibility with the

character of the surrounding area”).

See

415 ILCS 5/39.2(a)(i), (iii) (2006).

The Board held a hearing on August 23, 2007. Petitioners filed their opening brief on

September 17, 2007, and their reply brief on October 15, 2007. Waste Management and the City

filed their respective response briefs on October 9, 2007. In its final decision of December 6,

2007, the Board found that petitioners failed to prove that the City’s siting procedures were

fundamentally unfair, or that the City’s determinations regarding the two contested siting criteria

were against the manifest weight of the evidence. The Board therefore affirmed the City’s

decision to grant siting approval to Waste Management for North Milam.

MOTION AND RESPONSES

In their motion to reconsider (Mot.), petitioners claim that there are “new facts that have

occurred after the conclusion of the hearing.” Mot. at 1. Petitioners first note that criterion (iv)

of Section 39.2(a) requires that a “sanitary landfill or waste disposal site be located outside the

boundary of the 100-year floodplain or the site is flood-proofed” and that criterion (ii) requires

that the “facility be so designed, located and proposed to be operated that the public health,

safety and welfare will be protected.”

. at 2;

see also

415 ILCS 5/39.2(a)(ii), (iv) (2006).

According to petitioners, three pieces of new evidence show that North Milam does not meet the

requirements of these two siting criteria. Mot. at 2-3.

First, petitioners state that on October 5, 2007, the United States Department of

Homeland Security–Federal Emergency Management Agency (FEMA) transmitted to several

communities a “Deaccreditation Notification Letter.” The letter, assert petitioners, reports that

the levees shown on the effective Flood Insurance Rate Maps for communities in Madison, St.

Clair, and Monroe Counties do not meet federal requirements and therefore will not be shown as

providing protection from the base flood. Mot. at 2, Exh. 2, Exh. 4, App. B. Second, according

to petitioners, a September 29, 2007 briefing document from the “East West Gateway Council of

Governments” notes that FEMA is required to determine whether flood hazard areas meet

standards for adequate protection from catastrophic floods. The briefing document includes

“maps and tables to illustrate the general scope of the areas affected by the deaccredited flood

control facilities.” Mot. at 3, Exh. 3. Third, petitioners continue, a November 2007 “Revised

Draft of an East West Gateway Council of Governments’ status report” notes that:

without an immediate response, the decertification of levees will result in large

areas being designated as special flood hazard areas when preliminary maps are

released in early 2008, and that this is the same designation that would be used if

there were no levees at all in place and the area was completely unprotected from

flooding. The report notes (p. 36) that none of the levee districts has made

sufficient progress to avoid decertification and flood zone designation in the final

flood insurance maps to be issued in May 2009. Mot. at 3, Exh. 4.

Petitioners argue that these three documents demonstrate that because North Milam

would be located in an area that would not be “flood-proofed,” North Milam does not satisfy

criterion (iv). Mot. at 3. In turn, maintain petitioners, North Milam does not satisfy the criterion

(ii) requirement of protecting public health, safety, and welfare because a “levee breach allowing

floodwaters to reach the proposed landfill could affect communities in the Metro East American

Bottom floodplain.”

Waste Management’s response (WM Resp.) to petitioners’ motion for reconsideration

makes three arguments. First, Waste Management states that 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.” WM Resp. at 3, 4-5. Second, according to Waste Management, information

about the potential deaccreditation of levees in the future “is not newly discovered information

because it was available at the time of the hearing (in fact, Petitioners submitted similar

information as public comment).”

. at 3, 6-7, citing 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)

(“[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.”).

Third, Waste Management argues that the information submitted by petitioners is not

probative because it consists of “mere speculation about the possibility for future de-

accreditation of certain levees located in Madison, St. Clair and Monroe Counties.” WM Resp.

at 3. Waste Management emphasizes that the draft report relied on by petitioners states only that

deaccreditation

could

occur and, if it does, deaccreditation is currently predicted to happen

over

a year from now

, in May 2009.

. at 8. That same report, continues Waste Management,

recommends steps to avoid deaccreditation, including applying to FEMA for “Restoration Zone”

or “AR Zone” status:

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.

quoting Mot., Exh. 4 at 35.

Additionally, Waste Management concludes, petitioners’ information “does not establish, even if

deaccreditation should occur, that the Facility lies within the 100-year floodplain or has not been

floodproofed.”

. at 3, 9.

In the City’s response (City Resp.), the City adopts the response of Waste Management.

City Resp. at 2. The City further states that it took action in December 2007 and January 2008 to

prevent a deaccreditation by having any affected area mapped as a “Restoration Zone,” as

allowed by FEMA.

. The City concludes that “it is clear the

possible

levee deaccreditation

upon which [petitioners] rely is very remote given the actions on the part of the City to timely

address the concerns of FEMA.”

. (emphasis in original).

DISCUSSION

A motion to reconsider may be brought “to bring to the [Board’s] attention newly

discovered evidence which was not available at the time of the hearing, changes in the law or

errors in the [Board’s] previous application of existing law.” Citizens Against Regional Landfill

v. County Board of Whiteside County, PCB 92-156, slip op. at 2 (Mar. 11, 1993), citing

Korogluyan v. Chicago Title & Trust Co.

, 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st

Dist. 1991);

see also

35 Ill. Adm. Code 101.902. A motion to reconsider may specify “facts in

the record which were overlooked.” Wei Enterprises v. IEPA, PCB 04-23, slip op. at 3 (Feb. 19,

2004). “[R]econsideration is not warranted unless the newly discovered evidence is of such

conclusive or decisive character as to make it probable that a different judgment would be

reached.” Patrick Media Group, Inc. v. City of Chicago, 255 Ill. App. 3d 1, 8, 626 N.E.2d 1066,

1071-72 (1st Dist. 1993).

Petitioners do not argue that there has been a change in the law or that the Board, in its

December 6, 2007 decision, erred in applying the law or overlooked facts in the record. Instead,

petitioners assert that there is “new evidence” proving that North Milam does not satisfy criteria

(ii) and (iv) of Section 39.2(a) of the Act (415 ILCS 5/39.2(a)(ii), (iv) (2006)). The purported

new evidence consists of various documents allegedly demonstrating that the area where North

Milam is proposed to be located would not be “flood-proofed,” resulting in a failure to protect

public health, safety, and welfare. Mot. at 3. Waste Management asserts that petitioners have

waived these arguments by not making them during the appeal, that petitioners’ submissions now

are not new evidence, and that the information on the mere possibility of certain levees being

deaccredited in the future is speculative and therefore lacks probative value. WM Resp. at 4-9.

The City adds that it has taken measures to address any possible deaccreditation. City Resp. at 2.

Petitioners raised a host of issues in their petition for review filed with the Board on

March 13, 2007, including claims that North Milam would not be located either outside of the

floodplain or so as to protect public health, safety, and welfare. Petition at 6-7. In their post-

hearing brief filed on September 17, 2007, however, petitioners challenged only fundamental

fairness and siting criteria (i) and (iii) (415 ILCS 5/39.2(a)(i), (iii) (2006)). Neither criterion (ii)

nor criterion (iv) was even mentioned. The Board finds that “those issues raised by a petition but

have not been argued by a petitioner are waived.” Shaw v. Village of Dolton and Land & Lakes

Co., PCB 97-68, slip op. at 12 (Jan. 23, 1997);

see also

Citizens United for a Responsible

Environment v. Browning-Ferris Industries of Illinois, Inc. and Village of Davis Junction, PCB

96-238, slip op. at 3 (Sept. 19, 1996) (waiver found where assertions were made in the petition

and restated in the brief but not supported by argument or facts). Petitioners have waived the

right to challenge, in their motion to reconsider, North Milam’s siting based on criteria (ii) and

(iv).

Further, for purposes of this order, it is irrelevant whether the information offered with

the motion to reconsider constitutes new evidence unavailable at the time of hearing. Petitioners

proffer the documents solely to contest the City’s decision on siting criteria, the review of which

by the Board is limited to the local siting authority’s record.

See

415 ILCS 5/40.1(b) (2006);

Town & Country Utilities, Inc. v. PCB

, 225 Ill. 2d 103, 117, 866 N.E.2d 227, 235 (2007).

Accordingly, if the evidence is new as petitioners contend, it is necessarily outside of the City’s

record and therefore beyond the Board’s review on appeal. Alternatively, if the evidence is not

new as Waste Management and the City maintain, it cannot properly be the subject of

reconsideration.

See

Citizens Against Regional Landfill, PCB 92-156, slip op. at 2, citing

Korogluyan, 213 Ill. App. 3d at 627, 572 N.E.2d at 1158;

see also

35 Ill. Adm. Code 101.902.

For all of these reasons, the Board denies petitioners’ motion to reconsider.

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 5/41(a) (2006);

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, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on February 21, 2008, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board