BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on November 18, 2009, Leo P. Dombrowski, one
of the attorneys for Respondent, United City of Yorkville, filed via electronic filing the
attached
The United City of Yorkville's Response to Fox Moraine's Motion for
Reconsideration
with the Clerk of the Illinois Pollution Control Board, a copy of which
is herewith served upon you.
Anthony
G. Hopp
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
dombrowski@wildman.com
Respectfully submitted,
UNITED CITY
OF YORKVILLE
By:
/s/ Leo P. Dombrowski
One of their Attorneys
Electronic Filing, Received, Clerk's Office, November 18, 2009
CERTIFICATE OF SERVICE
I, Susan Hardt, a non-attorney, certify that I caused a copy of the foregoing
Notice
of Filing and The United City of Yorkville's Response to Fox Moraine's Motion for
Reconsideration,
to be served upon the Hearing Officer and all Counsel of Record listed
on the attached Service list
by sending it via Electronic Mail on November 18,2009.
/s/ Susan Hardt
[x]
Under penalties as provided by law pursuant to ILL. REV. STAT.
CHAP. 110 - SEC 1-109, I certify that the statements set forth
herein are true and correct.
Electronic Filing, Received, Clerk's Office, November 18, 2009
SERVICE LIST
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
Charles Helsten
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
chelsten@hinshawlaw.com
James
S. Harkness
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
jharlmess@rnomlaw.com
Eric
C. Weiss
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
eweis@co.kendall.il.us
James J. Knippen, II
Walsh, Knippen, Knight
&
Pollock
2150 Manchester Road
Suite 200
Wheaton,IL 60187
jim@wkkplaw.com
heather@wkkplaw.com
James
B. Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison
&
Ruttle
24255 Glenwood Avenue
Joliet, IL 60435
jim@mckeownlawfirm.com
Electronic Filing, Received, Clerk's Office, November 18, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent,
)
)
KENDALL COUNTY,
)
)
Intervenor.
)
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
THE UNITED CITY OF YORKVILLE'S RESPONSE
TO FOX MORAINE'S MOTION FOR RECONSIDERATION
Fox Moraine apparently feels that the 175 pages it previously submitted to the Board
(113-page opening brief and 62-page reply brief) were not enough to fully explain its arguments
for reversal
of the City of Yorkville's decision to deny Fox Moraine's landfill application. Or
perhaps Fox Moraine simply wishes to needlessly increase the costs
of this appeal. In either
event, its motion violates all standards applicable to motions for reconsideration, wastes the
resources
of the Board, and imposes unfair costs on Yorkville.
The Board has already heard, fully evaluated, and rejected the arguments Fox Moraine
makes in its motion. Unfortunately, the Board must
do so again. Fox Moraine's motion should
be denied.
I.
FOX MORAINE'S MOTION IS NOTHING MORE THAN A RE-HASH OF
ARGUMENTS PREVIOUSLY MADE AND REJECTED.
"The purpose of a motion to reconsider is not to reiterate arguments already made .... "
Instead, the "intended purpose of a petition to reconsider is to bring to the court's attention newly
Electronic Filing, Received, Clerk's Office, November 18, 2009
discovered evidence that was not available at the time of the first hearing, changes in the law, or
errors
in the court's previous application of existing law."
Woolums
v.
Huss,
323 Ill. App. 3d
628,639-40 (4
th
Dist. 2001);
see also Farley Metals, Inc.
v.
Barber Colman Co.,
269 Ill. App. 3d
104, 116
(1
st Dist. 1994 ) (affirming denial of plaintiff s motion for reconsideration that "merely
reiterated its earlier arguments before the court.");
Citizens Against Regional Landfill
v.
County
Bd. a/Whiteside County,
PCB 92-156 (April 22, 1993), slip op. at 1 (where the Board denied
motion for reconsideration "because the arguments presented
... are the same as those"
previously presented and considered by the Board); 35 Ill. Admin. Code
§ 101.902 ("In ruling
upon a motion for reconsideration, the Board will consider factors including new evidence, or a
change in the law, to conclude that the Board's decision was in error.")
Fox Moraine's motion comes nowhere close to meeting this standard. Fox Moraine
offers no new evidence, changes in the law, or errors in application
of the law that would
necessitate reconsideration.
It
simply repackages and re-hashes arguments it previously made-
and the Board fully considered and rejected. While many of Fox Moraine's earlier arguments
may have been "inartfully" presented (Mtn.
~
16), a motion for reconsideration is not a chance
for Fox Moraine to try to clarify or improve what it has already submitted.
A cursory look at Fox Moraine's motion shows that Fox Moraine is simply re-arguing the
points it previously raised, and nothing more. In paragraph after paragraph, Fox Moraine claims
the
"Board erred" in reaching various holdings, and then invites the Board to compare a section
of its October 1 Opinion and Order with some portion of Fox Moraine's opening or reply brief.
(For example, Fox Moraine asks the Board to
"Compare
Final Order at 62
with
Fox Moraine's
Post-Hearing Brief at 15-28. (Mtn.
~
18).) Fox Moraine's point seems to be that the Board
should reconsider its prior ruling because that ruling did not favor Fox Moraine. Fox Moraine
-2-
Electronic Filing, Received, Clerk's Office, November 18, 2009
offers nothing new. The following chart shows that Fox Moraine's motion for reconsideration is
nothing more than an attempt to re-argue points already made and rejected.
Fox Moraine's Claim of Error in the
Fox Moraine's Previous Argument on the Point
Board's October 1 Opinion and Order
and Board's Consideration and Ruling on
It
"Board erroneously applied the law on
In its reply brief (pp. 3-9), Fox Moraine argued that it
waiver." (Mtn.
~~
2-6, citing PCB Order
had not waived allegations
of bias. The Board
at 60.)
thoroughly evaluated the issue and decided it, for the
most part, in Fox Moraine's favor. (Order at 45-46,
53-55,61-62, rejecting Yorkville's claim that Fox
Moraine had waived bias allegations as to seven
Council Members and finding waiver only
as to two.)
F ox Moraine also fails to note that, while the Board
found that Fox Moraine had waived objections
of
bias only as to Council Members Werderich and
Plocher, the Board nonetheless considered most
of
Fox Moraine's arguments concerning the alleged bias
ofWerderich and Plocher. (Order at 60-61,83.)
Board "erred" by finding "Roth Report"
Fox Moraine argued this point in its opening brief
was privileged. (Mtn.
~~
7-8, citing
(pp. 36-38), which was thoroughly discussed and
Order at 63.)
evaluated and correctly decided by the Board. (Order
at
41-42,52,59,63.)
"Board further erred by declining to
Fox Moraine discussed this point at length in its
conduct a critical and technical review
of
opening brief (pp. 51, 105-07) and reply brief (pp.
the record. .
.. [Board also abdicated] its
22-23). The Board properly evaluated and decided it,
statutory duty to apply its technical
finding that
Town
&
Country
did not change the
expertise." (Mtn.
~~
9-11, citing
Town &
Board's standard of review. (Order at 65-67, citing
Country,
225 Ill. 2d
103 (2007).)
Peoria Disposal,
385 Ill. App. 3d at 800
("Town
&
Country
does not change that standard. In fact,
Town
& Country
does not even address that issue."»)
Additionally, although Fox Moraine disagrees with
the outcome, it should not ignore the fact that the
Board was clearly cognizant
of its statutory duty to
apply its technical expertise ("The Board reviews the
record using the Board's technical expertise to
determine whether the decision
of the local siting
authority is against the manifest weight
of the
evidence." Order at 70), and applied that expertise in
reaching its conclusions.
(Jd
at 68-82.)
"Board further erred in holding" that the
In its opening and reply briefs, Fox Moraine
recommendations in the Price report
extensively argued its position regarding the
-3-
Electronic Filing, Received, Clerk's Office, November 18, 2009
"constituted evidence of 'deficiencies' in
the landfill design," arguing that because
the Environmental Protection Act
authorizes the imposition
of conditions, a
recommendation
of conditions therefore
cannot be evidence
of deficiencies. (Mtn.
~
12, citing Order at 81.)
"Board also erred in holding" that
Yorkville City Council did not
improperly delegate authority to its City
Attorney. (Mtn.
~
14, citing Order at 64.)
"Board erred" in finding the City
Council's written decision was proper.
(Mtn.
~~
15-16, citing Order at 58.)
"Board further erred
... and overlooked"
precedent in upholding the deliberative
process privilege. (Mtn.
~
17, citing
Order at 59-60.)
"Board further erred by ignoring
compelling evidence
... and erroneously
discounted testimony"
of bias and
prejudgment. (Mtn.
~~
18-20, 22, citing
Order at 34,62.)
"Board summarily dismissed argument"
concerning City'S hiring of outside law
firm and law firm's invoice. (Mtn.
~
21.)
significance
of Price's and Clark's experience and
their recommendation
of conditions. (Op. Brief at 3,
28, 106; Reply Brief at 26-28, 34, 44, 46, 48.) The
Board thoroughly evaluated their recommendations,
which were based on the
evidence
contained in the
record, and correctly found that the recommended
conditions showed flaws in the landfill design.
(Order at 81.) Fox Moraine's argument that
recommended conditions cannot be evidence
of
design deficiencies because the Act permits the
imposition
of conditions is a
non sequitur
and makes
no sense.
Fox Moraine addressed this point in its opening brief
(pp. 36-38,41-47), which was thoroughly discussed
and evaluated and correctly decided by the Board.
(Order at 43, 58, 63-64.)
Fox Moraine discussed the City's written decision at
length in its opening brief (pp. 41-47) and reply brief
(20-21). The Board thoroughly discussed and
evaluated and correctly decided the issue. (Order at
14-15,51-52,58,63-64.)
Fox Moraine addressed this point in its opening brief
(pp. 7-9), and the Board thoroughly discussed and
evaluated and correctly decided it.
(Order at 35-36,
59-60.) Fox Moraine disingenuously claims the
Board "overlooked" precedent regarding the
deliberative process privilege even though the Board
analyzed the relevant case law and addressed all
of
Fox Moraine's arguments.
Fox Moraine argued at length in its opening brief (pp.
5, 15-28,47-48) and reply brief(pp. 13-22) that there
was evidence
of bias and prejudgment. That the
Board
rejected
Fox Moraine's claims that the
evidence showed bias and prejudgment does not
mean that the Board
ignored
the evidence. Rather,
the Board thoroughly evaluated all the evidence
before reaching its decision. (Order at 8-11, 34-39,
46-48,55-57,61-62.)
Fox Moraine addressed this point in its opening brief
(pp.28-34). The Board did not summarily dismiss
F ox Moraine's arguments, but rather discussed and
evaluated them in great detail before reaching its
-4-
Electronic Filing, Received, Clerk's Office, November 18, 2009
decision. (Order at 13, 39-41, 63.)
"Board erred," "further erred," and "also
Fox Moraine devoted most
of its opening brief (pp.
erred" in finding that the City Council
49-104) and reply brief (pp. 22-60) to discussing the
correctly concluded that Fox Moraine had
siting criteria in painstaking detail. Its motion offers
failed
to establish the various landfill
nothing new. The Board thoroughly discussed and
siting criteria. (Mtn.
~~
23-28.)
evaluated and correctly decided the siting criteria.
(Order at 15-34, 68-82.)
Fox Moraine is disappointed that it lost, but where arguments have previously been raised
and rejected, the proper remedy is an appeal, not a motion for reconsideration. Fox Moraine's
baseless motion is a waste
of this Board's time and resources, as well as the tax dollars the City
of Yorkville must devote to responding to it.
II.
FOX MORAINE TAKES EXTREME LIBERTIES WITH THE APPELLATE
COURT'S RECENT
CITY OF ROCHELLE
DECISION.
Fox Moraine cites one new case, decided after Fox Moraine's appeal had been fully
briefed. (Mtn.
~
13, citing
City of Rochelle
v.
Pollution Control Bd.,
(2
nd
Dist. Sept. 4, 2009).)
Yet even here, Fox Moraine cannot refrain from blatantly disregarding the rules and from
mischaracterizing the facts and the law, as it has done throughout this appeal.
The decision in
City of Rochelle
was a Rule 23 order. (A copy of the decision is attached
as Exhibit
A)
Fox Moraine admits that "a Rule 23 Order has no precedential value." (Mtn.
~
13.) Not only does a Rule 23 Order have no precedential value, but it "may not be cited by any
~
except to support contentions of double jeopardy,
res judicata,
collateral estoppel or law
of the case." Ill. Sup. Ct. Rule 23(e) (emphasis added).
Fox Moraine ignores the purpose
of Rule 23 by claiming that "a tribunal may
nevertheless take judicial notice of prior ... court proceedings" and urging the Board to take
notice of
City of Rochelle.
(Mtn.
~
13.) Were this Board to accept Fox Moraine's invitation,
Rule
23 would be meaningless, because every un-citable Rule 23 Order could be cited for the
-5-
Electronic Filing, Received, Clerk's Office, November 18, 2009
purpose of "judicial notice." Fox Moraine's manipulation of the rules and case law is nothing
short
of jaw-dropping and reveals the depths to which it will go to increase the costs of this
appeal.
See also Wallis v. Country Mut. Ins. Co.,
309 Ill. App. 3d 566,572 (2
nd
Dist. 2000)
(striking citation
of case from party's brief "because it is unpublished and therefore
nonprecedential" and admonishing party for citing it).
Not only does Fox Moraine violate Rule
23 by citing
City 0/ Rochelle,
but its
interpretation
of the decision is flat-out wrong. (And it is telling that Fox Moraine did not attach
a copy
of the decision to its motion even though Rule 23(e) requires a citing party to furnish the
Board and all other counsel with a copy.) Fox Moraine claims that the Board erroneously
regarded the Price Report as "evidence" that the siting criteria had not been met, in contravention
of
City of Rochelle's
holding that "a consultant's report submitted after the close of evidence did
not constitute 'evidence' that can be used to support the City's decision."
(Mtn., 13.) The
Board's Order clearly demonstrates that the Board did not consider the Price Report to be
"evidence." Rather, the Board correctly noted that the Price Report summarized evidence in the
record and discussed whether a particular siting criterion had or had not been met and whether
additional conditions were warranted.
See, e.g.,
Order at 17,23,27-28.
Fox Moraine also falsely claims that the Second District held in
Rochelle
that a
consultant's report does not constitute evidence. That was not an issue before the Second
District, nor did the court even mention it. Rather, the Second District was asked to resolve
whether the Board had correctly concluded that 14-foot berms were required at a particular
landfill.
City a/Rochelle
at p. 5. The Appellate Court found that: "There was no evidence either
in favor
of or in opposition to such a height. . .. The record supports the requirement that a berm
be installed. However, the 14 foot height requirement is against the manifest weight of the
-6-
Electronic Filing, Received, Clerk's Office, November 18, 2009
evidence."
Id.
Nowhere does the Second District, as claimed by Fox Moraine, address the
admissibility or reliability
of a consultant's report or the weight a siting authority should place on
it. Fox Moraine's treatment
of the
City of Rochelle
Rule 23 Order is typical of the way it has
conducted itself throughout this appeal. Fox Moraine misrepresents the facts and the law, and
when that's not enough, simply makes things up.
III.
CONCLUSION
The Board thoroughly considered all the arguments made by both Fox Moraine and
Yorkville. Its decision affirming the Yorkville City Council's denial
of F ox Moraine's
application was based on a careful analysis
of all the relevant facts and the law. Fox Moraine
received a full and fair hearing, but its landfill application was deficient in numerous ways. The
Board should deny Fox Moraine's Motion for Reconsideration.
Dated: November 18,
2009
Anthony
G. Hopp
Leo
P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive
Chicago, Illinois 60606
(312) 201-2000
Respectfully submitted,
UNITED CITY OF YORKVILLE,
CITY COUNCIL
/s/ Leo P. Dombrowski
One
of Its Attorneys
-7-
Electronic Filing, Received, Clerk's Office, November 18, 2009
EXHIBIT A
Electronic Filing, Received, Clerk's Office, November 18, 2009
Nos. 2--08--0427
&
2--08--0433, cons.
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
THE CITY OF ROCHELLE, an Illinois
)
municipal corporation,
)
)
Petitioner,
)
)
v.
)
)
ll..LINOIS POLLUTION CONTROL BOARD, )
ROCHELLE WASTE DISPOSAL, L.L.C.,
)
and THE ROCHELLE
CITY COUNCIL,
).
)
Respondents.
)
THE ROCHELLE CITY COUNCIL, an
Illinois municipal body,
Petitioner,
v.
)
)
)
)
)
)
)
ILLINOIS POLLUTION CONTROL BOARD, )
ROCHELLE WASTE DISPOSAL, L.L.C.,
)
and
THE CITY of ROCHELLE,
)
Respondents.
)
)
On Petition for Review of Orders of
the Illinois Pollution Control Board.
No. PCB--07--113
On Petition for Review
of Orders of
the Illinois Pollution Control Board.
No. PCB--07--113
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 of Rochelle (City) for local siting
approval
of a landfill pollution control facility. We dismiss in part and affinn as modified.
Electronic Filing, Received, Clerk's Office, November 18, 2009
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
v~getated
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 offact and conclusions
oflaw and recommended approval with the imposition of the 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.
R WD filed a motion to reconsider, objecting to eight of the
sp~cia1
conditions. The City also
filed a response to the motion, arguing that the conditions were unnecessary and specifically
requesting the deletion or modification of eight of the conditions. The Council subsequently adopted
a resolution modifying two of the 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 of the conditions and modified two
conditions that are not here at issue. Both the City and the Council then sought review in this court.
-2-
Electronic Filing, Received, Clerk's Office, November 18, 2009
I' :'1' "
"'F
I '!
Nos,
2--q8--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 rown
&
Country Utilities, Inc., v. Illinois Pollution Control Board, 225 Ill. 2<11'103,
122
I
(2007).
'
Pursuant
"
to section 5/41(b) of the EnVIronmental
..
ProtectIon Act,
fi
na
I
or
d
ers 0
fh
t e
)loa~d
"shall be based solely on the evidence in therecord oftbe particular proceeding involved, and
I
any
~uch
final order
***
shall be invalid if it is against the manifest weight of the evidence.l'l 415
I
I
,
ILC$ 5/4
I
(b) (West 2006). A factual finding is against the manifest weight ofthe evidence if, when
Vie1ng
aU
of
tb~
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
:Of
pJrudi~e
or passion, or appearS to be arbitraty and unsubstantiated by tbe evidence. United States
'Steel Cotporati0n v. Illinois Pollution Control Board, Illinois Environmental Protection Agency, 384
. I, .
,Ill. App. 3d 457,461 (2008).
.,
1t 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
. ; redilpos¢ of waste from the original landfill "as soon as practicable, but in no event later than six (6)
yearl from the date an IEP A permit is issued for the expansion, except as otherwise provided by the
Citylcouncil rot good cause sbown." .Tbe City argues that the evidence in the record supports a ten-
: :
yeaT~~~
limit for these
aC~ivitie~,
not a six-year
tim~
limit, and
req~ests
this court to del.ete Special
. : COTltlo,n 13.
Howev~r,
In
Apnl 2008, the Councll adopted Ordmance 08--3668, which, among
, othl
thi~gs,
approved an agreement to extend the time period for the exhumation and redisposal of
waste
frQm Unit 1 to ten years, subject to possible further extension. This intervening action hy the
CouLil makes it impossible for this court to grant the relief sought by the City, as the COl!lncil's
-3-
Electronic Filing, Received, Clerk's Office, November 18, 2009
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 ofthe 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 ofthe 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 ofthe facility. The City also presented the testimony of 1. 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 t.o a high of 1 0 feet high along
Creston Road." The top of the berm was to be planted with" overstory trees, ornamental trees and
evergre~n
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 "ofa minimum of8-foot
height" but never testified about any other height for the berm.
Thomas Hilbert,.the engineering manager: f()r. Winnebago
Re~l~~tiqn
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-
Electronic Filing, Received, Clerk's Office, November 18, 2009
.1
·1'rT~:T·
._ ... ];-
--r-T--'
J
. "' --
~
- .. -.", !' .-
:Nos.
2--08--04~7&
2--08--0433, cons.
:general testimony that berms help to screen operations from view and control litter. The PCB then
. 'coJluded,
base~
on the recommendations, Moose's testimony, "and RWD's operating record", that
: SpJial
C~nditi6n
23 (and another condition related to an operational screening berm) was not against
I I . .
.
t
h
e
mam~est
'C'.
we.lg
'h
tot
f h
e eVI
'd
ence.
Our examination of the record finds no support for the PCB's conclusion that 14 foot berms
r
•
• I
were required. There was no
evid~nce
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
,ar~es,
correctly, that an applicant's prior operating experience and record can be considered before
:grJting:~pproJ,aI
ofa pollution control facility. See415 ILCS 5/39.2(a) (West 2006). The PCB also
: arJes,
~orrectiy,
that it can apply its technical expertise in examining the record to determine
: whelher
~t supp~rts
the locai authority'S conclusion. See Town & Country Utilities, 225
Ill.
2dat123.
: Holevef.,
ther~
simply is no evidence to support the finding that a 14 foot berm would be necessary
: : to
ILve~t
further violations such as those
co~ed
in.tIre past or that. such a height would be
. I
reqUired
i
for
an~
other reason. The PCB's technical expertIse must be appbed to the record aRd not
, I I
'"
:
4
Impose
d'
!'ar
:'
b...1
Itran y or at ran
d
om.
r
the
.
recprd
,
supports the requirement that a berm be installed. However, the 14 foot height .
..
,
. : i
require~:ent
is
~gainst
the manifest weight of the evidence. Therefore, we determine the final order
.
of Je Bp.rd is Invalid and vacate said order. This court retains jurisdiction during the pendepcy of
.:
anyllill1lJ~
actipn tak.., by the Board pursuant to this order. See 415 ILCS
5/41
(West 2006)
. .
i
the order of the Illinois Pollution Control Board. is vacated and remanded for further
:
proeeed~ngs
consistent with this order.
Vacatec! and remanded.
McL~N,
1., with HUrClllNSON and HUDSON, JJ., concurring.
-5-
i/..,.
Electronic Filing, Received, Clerk's Office, November 18, 2009