BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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 No. 07-113
NOTICE OF FILING
TO:
All Counsel ofRecord (see attached Service List)
PLEASE TAKE NOTICE that on March 6, 2008, the undersigned filed electronically
with the illinois Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, the
Petitioner Rochelle Waste Disposal's Motion for Reconsideration, a copy
of which is attached
hereto.
Dated:
March 6, 2008
Charles F. Helsten
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
ROCHELLE WASTE DISPOSAL, L.L.C.
s/Charles F. Heisten
Charles F. Helsten
One
of Its Attorneys
70554563vl 871956
Electronic Filing - Received, Clerk's Office, March 6, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ROCHELLE WASTE DISPOSAL,
L.L.c.,
PCB No. 07-113
Petitioner,
Respondents.
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THE CITY OF ROCHELLE, an ILLINOIS )
MUNICIPAL CORPORATION and the )
ROCHELLE CITY COUNCIL,
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v.
PETITIONER ROCHELLE WASTE DISPOSAL'S
MOTION FOR RECONSIDERATION
NOW COMES the Petitioner, Rochelle Waste Disposal, L.L.C. ("RWD"), by and
through its attorneys, pursuant to 35 Ill. Admin. Code §§ 101.502 andl0l.902, and for its Motion
for Reconsideration
of the January 24, 2008 Opinion and Order entered by the Pollution Control
Board concerning Special Conditions
13 and 23, states as follows:
1.
On
March 5, 2008, both the local siting authority, the Rochelle City Council
("City Council" or "local siting authority'') and the applicant, City
of Rochelle ("City), filed
Motions for Reconsideration asking this Board to reconsider its January 24, 2008 Opinion and
Order.
2.
RWD commends the local siting authority's careful weighing
of the factual
evidence in the case, as memorialized
in
its Response Brief filed on December 10, 2007, and its
Motion for Reconsideration filed on March 5, 2008. The diligence shown
by the siting authority
in its review of the evidence is admirable, and its Motion for Reconsideration reflects a sincere
intent to fulfill its responsibilities under the Environmental Protection Act.
3.
The City'S diligent review of the factual evidence in the record as memorialized
in its Response
Brief filed December 10, 2007, and in its Motion for Reconsideration filed on
March 5, 2008, is similarly commendable.
70554462vl &71956
Electronic Filing - Received, Clerk's Office, March 6, 2008
4.
RWD accordingly joins
in
and adopts the Motions for Reconsideration filed by
the local siting authority and by the City, incorporating those Motions herein by reference. RWD
also seeks reconsideration of the Board's January 24, 2008 for the additional reasons set forth
below, while expressly reserving its right to appeal the Board'sOpinion and Order.
RWD's Additional Arguments in Support of ReconsideratioD
5.
After carefully weighing the evidence in the record, the local siting authority
determined there is no factual evidence to support Special Condition 13 (the period of time to be
allotted for exhumation and relocation of waste from "Unit 1" to a new Subtitle D unit), as
originally drafted. City Council's Response Brief at 2, 10, 14; Board's Order of January 24,
2008 ("Board's Order") at 27,37.
6.
The local siting authority found that the only credible, factual evidence
concerning Special Condition 13 was the testimony given by Devin Moose, who testified that
exhumation would take on the order of "about 10 years." City Council's Response Brief at 10.
The local siting authority accordingly detennined that the factual evidence in the record would
support Condition 13
only
if that condition was amended to require that exhumation be
completed as soon as practicable, but, in any event, in no more than ten (10) years from the date
an IEPA pennit is issued for the expansion, except for good cause shown. City Council's
Response briefat 10, 14. No party has challenged this fmding by the local siting authority.
7.
The local siting authority further found, after weighing the factual evidence, that
with respect to Special Condition 23 (the 14 foot perimeter benn), "[n]o witnesses testified and
no other evidence was introduced that operational screening berms, or a fourteen-foot perimeter
benn, were necessary." City Council'sResponse Brief at 11;
see also
City Council's Motion for
Reconsideration at
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7, 8. The local siting authority found that the evidence would support
Special Condition 23
only
if that condition was modified to reflect the testimony concerning
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70554462vl 871956
Electronic Filing - Received, Clerk's Office, March 6, 2008
construction of an undulating perimeter bexm of eight (8) to (10) feet in height, with plant
material. including trees no less than six feet in height, on top
of the berm. City Council's
Response Briefat
12; City Council'sMotion for Reconsideration at
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8. No party
has
challenged
this finding
by the local siting authority.
8.
Based upon the local siting authority's detennination that the factual evidence
would support Special Conditions 13 and 23
only
if certain modifications were made, the siting
authority drafted the modifications necessary to confOIm the conditions to the evidence in the
case. City Council's Brief at
2, 15; Board'sOrder of January 24,2008 ("Board's Order") at 27,
37; City Council's Motion for Reconsideration
at
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8. No party has challenged the local siting
authority's detennination that, as modified, Special Conditions
13 and 23 are supported by
evidence
in
the record.
9.
On January 24. 2008, this Honorable Board disregarded the local siting
authority's findings with respect to the lack
of evidence for Special Conditions 13 and 23, which
have never been challenged
by any party to the appeal, and entered an order affirming Special
Conditions
13 and 23 as originally drafted, thereby rejecting the siting authority's unchallenged
findings.
10.
In
Waste Management ofllUnois
v.
Bounty Bd. ofKankakee County,
PCB 04-186
(Jan. 24, 2008), a case decided the same day
as this one, the Board explained that it "may not
reweigh the evidence on the siting criteria to substitute its judgment for that
of the local siting
authority."
Id.
at 25 (emphasis added) (citing
Fairview Area Citizens Taskforce
v.
PCB,
198 lil.
App. 3d 541, 550, 555 N.E.2d 1178, 1184 (3d Dist. 1990);
Waste Management oflllinois, Inc.
v.
PCB,
187 lil. App. 3d 79, 81-82, 543 N.E.2d 505. 507 (2d Dist. 1989);
Tate v. PCB,
188ll1. App.
3d 994, 1022, 544 N.E.2d 1176, 1195 (4th Dist. 1989»). This doctrine
of deference to the siting
authority's findings is
in keeping with the well-established principle that it is up to the local
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70554462vl 871956
Electronic Filing - Received, Clerk's Office, March 6, 2008
siting authority to weigh the evidence presented.
See, e.g. Land and Lakes Co. v. Illinois PCB,
319 IlLApp.3d 41,53, 743 N.E.2d 188, 197 (3
rd
Dist. 2000).
11.
A Motion for Reconsideration may be used to afford the Board
an opportunity to
correct errors brought to its attention
by the movant.
See Philip Morris USA, Inc.
v.
Byron, 226
Il1.2d 416, 423 (2007).
12.
Here,
in the Board's January 24, 2008 Opinion and Order, the Board reweighed
the evidence and abrogated the unchallenged findings
of the local siting authority as to the
evidence.
WHEREFORE, for the reasons set forth above and for those presented
by the local siting
authority
and by the City in their Motions for Reconsideration, incorporated herein by reference,
Rochelle Waste Disposal, LLC, requests that this Honorable Board reconsider its Opinion and
Order
of January 24,2008 and revise the Order with respect to Special Conditions 13 and 23 to
reflect that the local siting authority found, after weighing the evidence, that there is
no support
for Special Conditions
13 and 23 as drafted.
Dated: March
6, 2008
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockfor~
IL 61105-1389
815-490-4900
Respectfully submitted,
ROCHELLE WASTE DISPOSAL
By:
sf
Charles F. Heisten
Charles
F. Helsten
One
of Its Attorneys
This document utilized 100% recycled paper products.
4
70554462v1 871956
Electronic Filing - Received, Clerk's Office, March 6, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the lllinois Code of Civil
Procedure, hereby under penalty
of perjury under the laws of the United States of America,
certifies that
on March 6,2008, she served a copy of the foregoing upon:
Hon. John McCarthy
Donald
1. Moran
45 East Side Square, Suite 301
Pedersen
&
Houpt
Canton, IL 61520
161 N. Clark St., Suite 3100
jjm718@sbcglobaLnet
Chicago,
TIL
60601-3142
dmoran@Pedersenhoupt.com
Glenn
Sech~
Esq.
David Tess, Esq.
Schain Burney Ross
&
Citron Ltd
Tess
&
Redington
222
N.
LaSalle St., Suite 1910
1090
N.
Seventh St.
Chicago,
TIL
60601
P.O. Box 68
gsechen@schainlaw.com
Rochelle,
IL
61068
dtess@oglecom.com
Alan Cooper, Esq.
Emily Vivian
Attorney at
Law
David Wentworth
II
233 E. Route 38, Ste. 202
Hasselberg, Williams, Grebe, Snodgrass
&
Birdsall
P.O. Box 194
125
SW Adams St., Ste. 360
Rochelle, IL 61068
Peoria,IL 61602-1320
coop
I
aw®rochelle.net
evivian@hwgsb.com
dwentworth@hwgsb.com
Bradley Halloran
Mr. Bruce W. McKinney
Illinois Pollution Control Board
Rochelle City Clerk
100 West Randolph Street
Rochelle
CiZ Hall
Suite 11-500
420 North 6 Street
Chicago, IL 60601
Rochelle,
IL
61068
hallorab@ipcb.state.il.us
bmckinney@rochelle.net
via electronic mail before the hour
of 5:00 p.m., at the addresses listed above.
Is
Joan Lane
HINSHAW
&
CULBERTSON LLP
100
Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
This document utilized 1
OO~
recycled paper products.
70554563vl 871956
Electronic Filing - Received, Clerk's Office, March 6, 2008
