UNITED
STATES
OF
AMERICA
STATE
OF
ILLINOIS
APPELLATE
COURT
)
ss
SECOND
DISTRICT
At
a
Session
of the
Appellate
Court
begun
and
held
at
Elgin
on the
1st
day
of
January,
in
the
year
of
our
Lord
two
thousand
and
nine
within
and
for
the
Second
District
of
Illinois:
Present:
Honorable
KATHRYN
E.
ZENOFF,
Presiding
Justice
Honorable
ROBERT
D.
MCLAREN
Honorable
JOHN
J.
BOWMAN
Honorable
SUSAN
F. HUTCHINSON
Honorable
JACK
M.
O’MALLEY
Honorable
ANN
B. JORGENSEN
Honorable
MICHAEL
J.
BURKE
Honorable
MARY
S.
SCHOSTOK
Honorable
DONALD
C.
HUDSON
Robert
J.
Mangan,
Clerk
Patrick
B.
Perez,
Sheriff
#2-08-0427
CONSOLIDATED
CASE/S:
2-08-0433
THE
CITY
OF
ROCHELLE,
an
Illinois
APPEAL
FROM
THE
municipal
corporation,
PCB
Petitioner,
ILLINOIS
POLLUTION
CONTROL
BOARD,
TRIAL
COURT
NO.
ROCHELLE
WASTE
DISPOSAL,
L.L.C.,
PCBO7113
and
THE
ROCHELLE
CITY
COUNCIL,
Respondents.
MANDATE
BE
IT
REMEMBERED,
that,
to
wit:
On the
4th
day
of
September,
2009,
a Decision
of
the
aforementioned
Court
was
entered
and
in
accordance
with
the
views
expressed
in
the
attached
Decision
the judgment of
the
trial
court
is
Vacated
and
Remanded.
CERTIFICATE
I,
Robert
J.
Mangan,
Clerk
of
the
Appellate
Court,
Second
District
of the
State
of
Illinois,
and
keeper
of the
records,
files
and
Seal
thereof,
do
hereby
certify
that
the foregoing
is
a
true
copy
of
the
final
order
of
said
Appellate
Court,
in
the above
entitled
cause
of record in
my
said
office.
IN
WITNESS
WHEREOF,
I
have
hereunto
subscribed
my
name
and
affixed
the
Seal
of
said
Court
this
23rd
day
of
October,
2009,
A.D.
I
\7i
Clerk
of the
Apelate’4ourt
Second
District
cE
FILED
.‘-,.
y
SEP-42009
Nos
2--08--0427
&
2--08--0433,
cons
ROSERTJ
YNGN
CLERK
*
APPELTECQURT2fldDlSThIQT
TNTHE
APPELLATE
COURT
OF
ILLiNOIS
SECOND
DISTRICT
THE
CITY
OF ROCI-IELLE,
an Illinois
)
On
Petition
for Review
of Orders
of
municipal
corporation,
)
the
Illinois
Pollution
Control
Board.
)
Petitioner,
)
)
v.
)
No.
PCB--07--113
)
ILLiNOIS
POLLUTION
CONTROL
BOARD,)
ROCHELLE
WASTE
DISPOSAL,
L.L.C.,
)
and
THE
ROCHELLE
CITY
COUNCIL,
)
)
Respondents.
)
THE
ROCHELLE
CITY
COUNCIL,
an
)
On Petition
for
Review
of
Orders
of
Illinois
municipal
body,
)
the
Illinois
Pollution
Control
Board.
)
Petitioner,
)
)
v.
)
No.
PCB--07--1
13
)
ILLINOIS
POLLUTION
CONTROL
BOARD,)
ROCHELLE
WASTE
DISPOSAL,
L.L.C.,
)
and
THE
CITY
of ROCHELLE,
)
)
Respondents.
)
RULE
23 ORDER
In
these
consolidated
cases,
we
review
the
final
administrative
decision
of
respondent,
The
Pollution
Control
Board
(PCB),
regarding
an application
by
the
City
ofRochelle
(City)
for local
siting
approval of
a landfill
pollution
control
facility.
We dismiss
in
part
and
affirm
as
modified.
Nos. 2--08-0427
&
2--08--0433,
cons.
The
City
owns a landfill
at
6513 Mulford Road
in
Rochelle. The landfill began operation
in
1972
and has
been
operated
since 1995
by
respondent Rochelle
Waste
Disposal (RWD). On
October
16, 2006,
the City filed an application
with the Rochelle City Council (Council)
to
expand the
landfill.
The
planned expansion included
the exhumation
and transfer
of
waste from the original landfill
to
a
new section
equipped with
a
composite liner,
leachate control system, landfill
gas management
system,
and groundwater monitoring
system. This part of the expansion was estimated
to take
between
five and ten years
to complete. The application also provided for
a
vegetated
berm,
at least
eight feet tall,
around the perimeter of the facility.
The parties
presented testimony from 10
witnesses over six
days
of public hearings.
Patrick
Engineers,
retained
by
the Council
as a technical
consultant,
submitted
its report
and
recommendations after the close of
evidence. Patrick
recommended approval of the
application
subject to
37
various conditions. The hearing
officer submitted his
findings
of fact
and
conclusions
oflaw and
recommended approval with the
imposition ofthe 37 conditions recommended
by
Patrick.
The
Council adopted Resolution R07-10,
approving the application
subject to
37 special
conditions
based on, but slightly different from, Patrick’s
conditions.
RWD filed
a
motion
to
reconsider,
objecting
to
eight ofthe special conditions. The
City
also
filed
a
response
to
the motion,
arguing that the
conditions were unnecessary and
specifically
requesting the deletion or modification ofeight
ofthe conditions. The Council subsequently
adopted
a
resolution modif,’ing
two ofthe conditions
contained
in
Resolution R07-
10
and reaffirming all
other
remaining
conditions. RWD then
appealed to the Board, contesting eight of the special
conditions
imposed by the Council. The Board affirmed the Council
as to six ofthe conditions and modified
two
conditions
that are not here at issue. Both
the
City
and the Council then sought review in this
court.
-2-
Nos. 2--08--0427
&
2--08--0433,
cons.
On review, it
is the
Board’s final
decision that we examine, not that
of the local siting
authority. See Town & Country Utilities, Inc., v.
Illinois Pollution Control
Board, 225 Ill. 2d 103,
122 (2007).
Pursuant to
section
5/41(b)
of the Environmental
Protection
Act,
final orders of
the
Board
‘shall
be
based
solely
on the evidence
in the record of the particular proceeding
involved,
and
any such final order
shall
be
invalid if it is against the
manifest weight of the evidence.” 415
ILCS
5/41(b) (West
2006).
A factual finding is against
the manifest weight
of
the evidence if,
when
viewing
all ofthe
evidence in
the light most favorable to the
prevailing
party, the opposite conclusion
is clearly apparent or the finding is palpably
erroneous
and wholly unwarranted, is clearly the
result
ofprejudice or passion, or appears
to be
arbitrary and unsubstantiated
by
the evidence. United
States
Steel Corporation
v.
Illinois Pollution
Control
Board, Illinois Environmental Protection Agency,
384
Ill. App. 3d
457, 461 (2008).
At issue
here are
two of the special conditions imposed
by
the Council and affirmed
by the
Board.
We
first address Special Condition
13,
which, in
part,
required RWD
to exhume and
redispose
of
waste
from the original
landfill “as soon as
practicable,
but in no
event later than
six (6)
years from
the
date
an IEPA permit is
issued for the
expansion, except
as
otherwise provided
by the
City
Council for good cause shown.” The City argues that the evidence in the record supports a
ten
year time limit for
these
activities, not
a
six-year time limit, and requests this court to delete Special
Condition
13. However, in April 2008,
the Council adopted Ordinance
08--3668, which,
among
other
things, approved an agreement
to
extend the time period for the exhumation and redisposal
of
waste
from Unit
1
to
ten
years,
subject to
possible ffirther extension. This intervening
action
by
the
Council
makes
it
impossible for
this court
to
grant the
relief
sought by the
City,
as
the
Council’s
-3-
Nos.
2--08--0427
&
2--08--0433,
cons.
action
is the
equivalent
of
the
relief
sought
on
appeal.
Thus,
the
issue
is moot.
See
In
re
D.S.,
217
Ill.
2d
306,
320
(2005).
Because
it is
moot,
we
dismiss
this
portion
of
the
review.
Both
the City
and
the
Council
next
contend
that
Special
Condition
23,
which
provides
for the
building
of
berms
14
feet
in
height
around
the
perimeter of
the
site,
is
against the manifest
weight
of
the
evidence.
We
agree.
The
City’s
application
to
expand
the
landfill
proposed
a
vegetated
berm,
at
least
eight
feet
tall,
around
the
perimeter
of
the
facility.
The
City
also
presented the
testimony
of
J.
Christopher
Lannert
of
the
Lannert
Group,
a company
that
provides professional
services
in
the
area
of
planning,
community
consulting,
and
landscape
architecture.
Lannert,
a
registered
landscape
architect,
proposed
a
berm
that
would
“undulate
from
a
minimum
of
8 feet
high
to a
high
of 10
feet
high
along
Creston
Road.”
The
top
of
the
berm
was
to be
planted
with
“overstory
trees,
ornamental
trees
and
evergreen
trees”.
The
only
other
testimony
regarding
berms
was
provided
by
Devin
A.
Moose,
a
registered
professional engineer
with
Shaw
Environmental,
the
principal
designer
of
the
expansion
proposal.
Moose
referred
to
Lannert’s
testimony
about
an
undulating
berm
“of
a
minimum
of
8-foot
height”
but
never
testified
about
any
other
height
for
the
berm.
Thomas
Hubert,
the
engineering
manager
for
Winnebago
Reclamation
Service,
whose
duties
included
construction, permitting,
and
compliance
at
the
Rochelle
landfill,
testified
about
the
violation
history
at
Rochelle
that
was
“more
extensive”
than
most
landfill
facilities.
Stephen
Rypkema
of
the
Ogle
County
Solid
Waste
Management
Department
submitted
a list
of
16
various
violations
that
had
occurred between
1995
and
2006.
In
its
opinion
and
order,
the
PCB
noted
that
Patrick
Engineering
and
the
hearing
officer
recommended
the
berm
be at
least
14
feet
in
height.
The
PCB
also
noted
some
of
Devin
Moose’s
-4-
Nos. 2--08--0427
&
2--08--0433,
cons.
general
testimony
that
berms
help to
screen operations from view and control litter. The PCB then
concluded,
based on the recommendations; Mooses testimony, ‘and RWD’s operating
record”,
that
Special
Condition 23 (and another condition related
to
an operational screening berm) was not against
the
manifest weight of the evidence.
Our examination
of the record finds no support for the PCB’s conclusion that
14
foot
berms
were required.
There was no evidence either in favor
of or in opposition to such a
height. There
was
also no evidence suggesting that the
planned 8 to
10
foot high berm
was
insufficient. The PCB
argues, correctly, that an
applicant’s prior operating experience and record can be considered before
granting
approval of
a
pollution control facility.
See
415 ILCS 5/39.2(a)
(West
2006). ThePCB
also
argues, correctly, that it
can apply its technical expertise in examining the record to determine
whether it supports the
local authority’s conclusion.
See
Town
&
Country Utilities,
225
Ill. 2d
ati
23.
However, there simply is no
evidence to support the finding that a 14 foot berm would be necessary
to
prevent further violations
such
as
those committed in the
past
or that such
a
height
would
be
required for any other reason. The
PCB’s technical expertise must be applied to
the record
and not
imposed
arbitrarily or
at random.
The record supports the requirement that
a
berm
be
installed. However, the
14
foot height
requirement is against the manifest weight ofthe evidence. Therefore,
we
determine
the
final order
of
the Board is
invalid
and vacate said order.
This
court retains jurisdiction
during the pendency
of
any
further action taken
by
the Board pursuant
to
this order.
See
415 ILCS 5/41 (West
2006)
The order of the Illinois Pollution Control Board is
vacated
and remanded
for
further
proceedings
consistent with
this
order.
Vacated
and remanded.
McLAREN, J.,
with
HUTCHINSON and
HUDSON,
JJ.,
concurring.
-5-