BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    WASTE MANAGEMENT OF
    ILLINOIS, INC.,
    Petitioner,
    v.
    COUNTY BOARD OF KANKAKEE
    COUNTY, ILLINOIS,
    Respondent.
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    PCB 04-186
    (pollution Control Facility Siting Appeal)
    NOTICE OF FILING
    TO:
    See Attached Service List
    PLEASE TAKE NOTICE that
    on March 5, 2008, the undersigned electronically filed
    with the Clerk
    of the Illinois Pollution Control Board WASTE MANAGEMENT OF
    ILLINOIS, INC.'S MOTION TO RECONSIDER in the above entitled matter, a copy of
    which is attached hereto.
    WASTE MANAGEMENT
    OF ILLINOIS, INC.
    By:
    lsi Donald
    J.
    Moran
    One of Its Attorneys
    Donald
    1. Moran
    Lauren Blair
    PEDERSEN
    & HOUPT
    161 North Clark Street, Suite 3100
    Chicago, Illinois 60601
    (312) 641-6888
    Attorney Registration No. 1953923
    474854.1
    Electronic Filing - Received, Clerk's Office, March 5, 2008
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    WASTE MANAGEMENT OF
    ILLINOIS, INC.,
    Petitioner,
    v.
    COUNTY BOARD OF KANKAKEE
    COUNTY, ILLINOIS,
    Respondent.
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    PCB 04-186
    (pollution Control Facility Siting Appeal)
    WASTE MANAGEMENT OF ILLINOIS, INC.'S MOTION TO RECONSIDER
    Petitioner, Waste Management of Illinois, Inc. ("WMII"), by its attorneys, Pedersen
    &
    Houpt, and pursuant to Sections 101.520 and 101.902 of the lllinois Pollution Control Board
    ("Board") Procedural Rules ("Rules"), moves the Board to reconsider and reverse its January 24,
    2008 Opinion and Order ("Opinion") affirming the decision to deny WMII's Site Location
    Application ("Application").
    In
    support thereof, WMII states as follows:
    1.
    On January 24,2008, the Board affinned the decision of the Kankakee County
    Board ("County") denying WMIl's Application on the grounds,
    inter alia,
    that criteria (i), (iii)
    and (vi) of Section 39.2(a) ofthe Illinois Environmental Protection Act ("Act"), 415 ILCS
    5/39.2(a) (2000), were not met.
    2.
    In
    the Opinion, the Board identified its standard of review ofthe County's
    decision as follows:
    The Board will not disturb a local siting authority's decision regarding the
    applicant's compliance with the statutory siting criteria unless the decision
    is contrary to the manifest weight
    of the evidence.
    See Concerned
    Adjoining Owners,
    288 Ill. App. 3d at 576, 680 N.E.2d at 818;
    see also
    Land
    and Lakes,
    319 Ill. App. 3d at 53, 743 N.E.2d at 197. 'Thata
    different conclusion may be reasonable is insufficient; the opposite
    474630vl
    Electronic Filing - Received, Clerk's Office, March 5, 2008
    conclusion must be clearly evident, plain or indisputable.'
    Concerned
    Adjoining Owners,
    288 Ill. App. 3d at 576, 680 N.E.2d at 818,
    quoting
    Turlek
    v.
    PCB,
    274 Ill. App. 3d 244, 249, 653 N.E.2d 1288, 1292 (1st
    Dist. 1995). The Board may not reweigh the evidence on the siting
    criteria to substitute its judgment for that
    of the local siting authority.
    See
    Fairview Area Citizens Taskforce
    v.
    PCB,
    198 Ill. App. 3d 541,550,555
    N.E.2d 1178, 1184 (3d Dist. 1990);
    Waste Management ofIllinois, Inc.
    v.
    PCB,
    187 Ill. App. 3d 79,81-82,543 N.E.2d 505,507 (2d Dist. 1989);
    Tate
    v.
    PCB,
    188 Ill. App. 3d 994, 1022,544 N.E.2d 1176, 1195 (4th Dist.
    1989).
    Waste Management
    ofIllinois, Inc.
    v.
    County Board ofKankakee
    County, PCB 04-186, slip op.
    at
    p. 25 (January 24,2008).
    3.
    Applying the manifest weight of the evidence standard, the Board affirmed the
    County's decision on criteria (i), (iii) and (vi), without applying any
    of its technical expertise in
    examining the record to determine
    if there is relevant evidence to support the denial.
    Id.,
    slip op.
    at pp. 49, 50, 51.
    4.
    In accordance with the recent Illinois Supreme Court case of
    Town
    &
    Country
    Utilities, Inc.
    v.
    Illinois Pollution Control Board,
    225 Ill. 2d 103, 866 N.E.2d 227 (2007), the
    proper standard
    ofreview is not the manifest weight of the evidence standard, but rather one that
    requires a higher level
    of scrutiny to determine if there is competent evidence in the record that
    supports the local siting authority's decision.
    5.
    In
    Town
    &
    Country,
    the Illinois Supreme Court stated that:
    section 40.1 (b) grants the Board an important role in the permit process.
    Section 40.1 requires the Board'stechnically qualified members to
    conduct a "hearing," which shall include the procedures outlined in
    sections 32 and 33
    ofthe Act. 415 ILCS 5/40.1 (West 2002),
    citing 415
    ILCS 5/32, 33(a) (West 2002). These sections require the Board
    to make
    factual and legal determinations on evidence. While the Board may not
    receive new or additional evidence, the statute still provides that the
    petitioner has the "burden
    of proof." 415 ILCS 5/40.1(a), (b) (West 2002).
    Id.,
    225
    m.
    2d at 120, 866 N.E.2d at 237.
    474630vl
    2
    Electronic Filing - Received, Clerk's Office, March 5, 2008
    6.
    The Illinois Supreme Court further stated that: "The fact that the Board
    undertakes consideration of the record prepared by the local siting authority rather than preparing
    its own record does not render the Board'stechnical expertise irrelevant. Instead,
    the Board
    applies that technical expertise in examining the record to determine whether the record
    supported the local authority's conclusions." Id.,
    225 Ill. 2d at 123,866 N.E.2d at 238.
    (Emphasis added.)
    7.
    Thus, in light of
    Town
    &
    Country,
    the proper standard to be used by the Board on
    review is not whether the opposite conclusion is clearly plain and evident
    (i.e.,
    manifest weight
    review), but whether, after applying eth Board'stechnical scrutiny to the record, it contains
    reliable and accurate evidence to support the local authority's decision.
    See Id.,
    225 Ill. 2d at
    124,866 N.E.2d at 239. In this case, the Board did not apply the standard
    of review articulated
    in
    Town
    &
    Country
    in
    reviewing the denial of criteria (i), (iii) and (vi).
    8.
    A motion to reconsider is proper where it seeks to bring to the Board's attention
    clear errors
    in
    the Board's application of the law.
    See Korogluyan v. Chicago Title
    &
    Trust Co.,
    213 Ill. App. 3d 622,627,572 N.E.2d 1154, 1158 (1st Dist. 1992). This Motion asks the Board
    to reconsider its decision and apply the correct legal standard ofreview as set forth in
    Town
    &
    Country.
    9.
    Applying the correct standard of review, the Board should determine that the
    record lacks any reliable or accurate evidence to support the County's denial of criteria (i), (iii)
    and (vi).
    474630vl
    3
    Electronic Filing - Received, Clerk's Office, March 5, 2008
    WHEREFORE, Petitioner, WASTE MANAGEMENT OF ILLINOIS, INC., respectfully
    requests that the Board:
    A.
    Reconsider its January
    24,2008 ruling that the Application did not satisfy criteria
    (i), (iii) and (vi)
    of Section 39.2(a) of the Act;
    B.
    Apply the proper standard
    of review and determine that the record does not
    contain evidence sufficient to support the denial
    of criteria (i), (iii) and (vi);
    C.
    Reverse the County's denial
    of the Application; and
    D.
    Grant such other and further
    relief as it deems appropriate.
    Respectfully Submitted,
    WASTE MANAGEMENT OF ILLINOIS, INC.
    By:
    /s/ Donald J. Moran
    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
    474630vl
    4
    Electronic Filing - Received, Clerk's Office, March 5, 2008
    CERTIFICATE OF SERVICE
    I, Donald J. Moran, an attorney, on oath certify that I caused to be served the foregoing,
    WASTE MANAGEMENT OF ILLINOIS, INC.'S MOTION
    TO RECONSIDER, upon the
    following:
    Mr. Charles Helsten
    Hinshaw
    &
    Culbertson
    P.O. Box 1389
    Rockford,
    IL
    61105-1389
    chelsten@hinshawlaw.com
    VIA ELECTRONIC MAIL
    Mr. Jamie Boyd
    Kankakee County State'sAttorney
    450 East Court Street
    Kankakee,
    IL
    60901
    VIA REGULAR FIRST CLASS U.S. MAIL
    Bradley Halloran
    Hearing Officer
    Illinois Pollution Control Board
    100 West Randolph Street
    Suite 11-500
    Chicago,
    IL
    60601
    VIA REGULAR FIRST CLASS U.S. MAIL
    via electronic mail or by depositing a copy thereof, enclosed in an envelope at
    161 N. Clark Street,
    Chicago,
    IL
    60601 with proper postage pre-paid as addressed above before 5:00 p.m. on this 5th
    day of March, 2008.
    /s/
    Donald J. Moran
    Donald J. Moran
    474854.1
    Electronic Filing - Received, Clerk's Office, March 5, 2008

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