Will County v. Village of Rockdale , 2018 IL App (3d) 160463 ( 2018 )

2018 IL App (3d) 160463
No. 3-16-0496 (Consolidated)
Opinion filed July 5, 2018
Modified Upon Denial of Rehearing November 27, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
WILL COUNTY, )
)
Petitioner, )
)
v. )
)
THE VILLAGE OF ROCKDALE; THE ) Petition for review of
BOARD OF TRUSTEES OF THE VILLAGE ) Order of the Illinois Pollution
OF ROCKDALE; ENVIRONMENTAL ) Control Board
RECYCLING AND DISPOSAL SERVICES, )
INC.; and THE ILLINOIS POLLUTION )
CONTROL BOARD, )
) Appeal Nos. 3-16-0463 and 3-16-0496
Respondents. ) PCB Nos. 16-54 and 16-56
______________________________________ )
)
WASTE MANAGEMENT OF ILLINOIS, )
INC., )
)
Petitioner, )
)
v. )
)
THE VILLAGE OF ROCKDALE; THE )
BOARD OF TRUSTEES OF THE VILLAGE )
OF ROCKDALE; ENVIRONMENTAL )
RECYCLING AND DISPOSAL SERVICES, )
INC.; and THE ILLINOIS POLLUTION )
CONTROL BOARD, )
)
Respondents. )
___________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice Schmidt concurred in the judgment and opinion.
Justice Wright dissented, with opinion.
_____________________________________________________________________________
OPINION
¶1 Respondent Environmental Recycling and Disposal Services, Inc. (ERDS), filed a siting
application seeking approval for a pollution control transfer station. A hearing on the application
was held, and the hearing officer found that ERDS failed to meet certain statutory criteria.
Subsequently, the Board of Trustees of the Village of Rockdale (Village Board) conditionally
approved the application. Petitioners Will County and Waste Management of Illinois, Inc.
(WMI), filed separate petitions requesting the Illinois Pollution Control Board (Pollution Board)
to review the Village Board’s decision. The petitioners argued that (1) the Village Board lacked
jurisdiction and (2) certain statutory criteria under section 39.2(a) were not met. The Pollution
Board found that (1) the Village Board had jurisdiction to review the siting application, (2) the
amendment to the application was proper, and (3) the Village Board’s decision on criteria (i),
(ii), (v), and (viii) was not against the manifest weight of the evidence. Petitioners appealed. We
affirm.
¶2 FACTS
¶3 Respondent ERDS operated a refuse hauling business on Moen Avenue in Rockdale,
Illinois, which had been in operation for 15 years. It filed a request for siting approval to have a
pollution control transfer station in the same area. ERDS sent a notice of a public hearing to
nearby landowners, public officials, and entities, including the General Assembly. It also
published the notice in the Herald-News. The notice stated that ERDS had sought approval to
site a transfer station on Moen Avenue. Specifically, the notice reads:
2
“NOTICE OF INTENT TO FILE A REQUEST FOR
LOCAL SITING APPROVAL OF A NEW POLLUTION
CONTROL FACILITY WITH THE VILLAGE OF ROCKDALE,
ILLINOIS
YOU ARE HEREBY NOTIFIED THAT, pursuant to
§ 39.2(b) of the Illinois Environmental Protection Act (‘the Act’)
415 ILCS 5/39.2(b), the Applicant, Environmental Recycling and
Disposal Services Inc., will file its Request for Siting Approval for
a new pollution control facility, the Moen Transfer Station, with
the Village of Rockdale, Illinois, 79 Moen Ave., Rockdale, Illinois,
60436, on Dec. 12, 2014. In its request for siting approval, the
Applicant will seek approval to site, permit, construct, develop and
operate a transfer station as defined by Section 3.500 of the Illinois
Environmental Protection Act (the ‘Act’) (415 ILCS 5/3.500), the
Moen Transfer Station located generally north of the intersection
of Moen Ave. and Gould Court, at 2277 Moen Ave., said location
being in the Village of Rockdale, Illinois.
The proposed facility encompasses approximately 2.16
acres, and is legally described as follows:
Parcel 1: [legal description of the property]
Parcel 2: [legal description of the property]
Property address: 2277 Moen Avenue, Joliet, IL 60436
3
The proposed facility would be a non-hazardous transfer
station which will accept non-hazardous waste for temporary
storage, consolidation, and further transfer to a waste
disposal/treatment facility. The Applicant will develop and operate
the transfer station only as approved by the Illinois Environmental
Protection Agency, other applicable regulatory agencies, and as
authorized by applicable statutes and regulations. The waste
accepted for transfer will be general municipal waste, landscape
waste, recyclables and construction and demolition debris
generated by residential, commercial and industrial sources. The
facility proposes to handle an average 200 tons per day of solid
waste. The facility will not accept liquid or hazardous waste. The
facility is projected to have an operating life of at least 20 years.
The Applicant is Environmental Recycling and Disposal
Services Inc., whose addresses are PO Box 675, Orland Park, Il.
60462, and 2277 Moen Ave., Rockdale, Il. 60436.
On Dec. 12, 2014, the Applicant will file with the Village
of Rockdale, Illinois, its Request for Siting Approval. The request
will include the substance of the Applicant’s proposal and
supporting documents.
The Request filed by the Applicants with the Rockdale
Village Clerk will be available for your inspection in the Rockdale
Village Clerk’s Office located at 79 Moen Ave., Rockdale, Illinois,
4
60438, during normal business hours daily, not including
weekends or holidays. Copies of the request or any part thereof
will be available from the Rockdale Village Clerk upon payment of
the actual cost of reproduction, as outlined in the Illinois Freedom
of Information Act (5 ILCS 140/1 et seq.).”
¶4 In October 2014, ERDS and Will County entered into a host agreement. In December,
ERDS filed the siting application. In the application, ERDS stated that the service area for the
transfer station includes the northern and western portions of Will County and other adjoining
communities. ERDS estimated its service area based on the service area for Prairie View
Recycling and Disposal Facility (Prairie View RDF) because it is the primary disposal option for
Will County residents and businesses. Relying on the generation and disposal volumes for Will,
Kendall, and Grundy Counties, the total population growth in the service area is expected to
increase by 62% by 2040.
¶5 There are three landfills in the service area: Laraway Recycling and Disposal Facility
(Laraway RDF), Environtech Landfill, and Prairie View RDF. The Laraway RDF did not accept
municipal solid waste, and Environtech Landfill had about one year of life remaining in its
operations. Will County’s solid waste management plan (SWMP) and the Prairie View RDF host
agreement state that “as much waste as practical” in the service area should be disposed at Prairie
View RDF. In one day, Prairie View RDF received 188 loads of disposable waste, 111 of which
were loads from transfer trailers. The amount of waste disposed at Prairie View RDF remained
consistent from 2007 to 2011 but decreased by 30% from 2011 to 2013.
¶6 There are three transfer stations located in the service area: Rockdale Transfer Station,
Citiwaste Transfer Station, and Joliet Transfer Station. The Rockdale Transfer Station is located
5
0.3 miles from the proposed facility and takes only recyclables at around 200 tons per day
(TPD). Citiwaste Transfer Station is 4.5 miles east of the proposed facility; receives only clean
construction and demolition debris, landscape waste, and recyclables; and takes around 100
TPD. Joliet Transfer Station is 1.25 miles from the proposed facility. The station was accepting
between 1000 to 1300 TPD in the past but was currently accepting between 2400 to 3700 TPD.
Joliet Transfer Station is the only municipal solid waste transfer station in the service area. An
overflow of waste on the tipping floor at the beginning of the operation day had been observed at
the station. Also, the station had been observed cutting off trucks waiting in line at the end of the
day, and consequently, those trucks are not allowed to dump. There was a capacity shortfall of
between 853 to 2046 TPD in the service area because the Joliet station was currently generating
more than double the amount of its average volume. The shortfall was based on the difference
between the Joliet station’s current waste acceptance and its waste acceptance in prior years. It
also had been observed to be operating beyond capacity.
¶7 The proposed location for the facility is not in a 100-year floodplain and has been
operating as a refuse hauling company since 1999. There are no wetlands, archaeological or
historical sites, presence of any threatened or endangered species, or wild or scenic rivers in the
vicinity. The proposed facility is an 8000-square-foot transfer station with an approximately
6300-square-foot tipping floor. The building will have a drive-through loading pit and will
include a scale house and three stormwater detention ponds. The trucks will have access to the
proposed facility through Moen Avenue and will have two lanes of traffic. Collection trucks will
enter the site and proceed to the scale house to be weighed. Afterward, collection trucks will
proceed to unload in the transfer station or wait in the queuing area where the truck will be
notified when it can proceed to the unloading area. Two trucks can unload at the same time.
6
Also, transfer trailers will enter the site and wait in the queuing area until they can proceed to the
building.
¶8 The surface water management system is designed to control and manage runoff from
developed areas for a 25-year, 24-hour storm event; manage a 100-year, 24-hour storm event;
and control discharge from a 2-year and 100-year critical duration storm event. The plan will
“improve the quality of stormwater runoff” from the proposed facility. All detention ponds have
small outlet orifices, and the captured water takes over three days to be fully released from the
detention ponds. All stormwater from the site drains to one pond equipped with a discharge pipe
and a shut-off valve that can be closed in case of a spill at the site. The discharge pipe directs the
water into a ditch on Moen Avenue that carries the water through underground drainage ways to
the Des Plaines River. The drainage system is designed to meet Illinois and Will County
requirements. The stormwater system will comply with the Will County Stormwater
Management Ordinance (Stormwater Ordinance), including keeping peak detention water
surface elevation below floor elevation. In particular, detention pond 1’s “initial” floor elevation
level was 571 feet mean sea level (msl) and its maximum floor elevation was 578 feet msl.
Detention pond 1’s peak elevation level was 577.93 feet msl for 100-year frequency and 573.06
feet msl for 2-year frequency.
¶9 The tipping floor and barrier walls will be cleaned with a pressure washer as needed and
will be swept at least once every 24 hours. A fence will surround the property to control litter,
and tarps will be used on loads. All roads and parking areas will be paved to control dust and
mud. The site can accommodate up to 14 collection vehicles at a time, which will prevent backup
onto Moen Avenue or on-site traffic. It will take about 5 minutes for a collection truck to enter
the facility, dispose the waste, and exit the facility and take about 15 minutes to load a transfer
7
trailer. Attached to the application are full-size drawings of the proposed facility. The map of the
proposed facility depicts traffic arrows and stop signs on the roadway to guide the trucks through
the facility.
¶ 10 The proposed facility includes design and operational features intended to minimize the
danger to the surrounding area from fire, spills, or other operational accidents. The incident
prevention and response plan details fire, spill, and accident prevention and responses. The
facility will have a safety officer, and the building is a “pre-engineered metal building” equipped
with a sprinkler system. Employees will be trained, and equipment will be cleaned to remove any
combustible waste. The facility will not accept liquid waste, and any liquid found on the tipping
floor will be drained, processed, and discharged into a sewer system. No liquid from the tipping
floor will be discharged into the stormwater management system. The proposed facility “may
desire to accept more than 200 [TPD] of waste. The facility’s Host Agreement with Will County
indicates that a fee will be paid to Will County for every ton of waste accepted over 600 [TPD].”
ERDS explained that the proposed facility would increase competition, increase operational
flexibility, increase transfer capacity, reduce environmental impacts, and create an economic
benefit for the village and Will County.
¶ 11 In March 2015, a hearing was held. The Village Board received 21 public comments
from various individuals and companies. ERDS filed an “ERRATA” that included new
calculations and corrections to the siting application. The hearing officer determined that the
ERRATA was an amendment of the application and granted WMI and Will County (collectively,
petitioners) additional time to review the amendment.
¶ 12 John Hock, vice president of Civil & Engineering Consultants, Inc., testified on behalf of
ERDS. Hock testified that there was a shortfall of 850 to 2000 TPD in transfer station capacity
8
because Joliet Transfer Station’s maximum average volume was 1300 TPD and it was currently
generating 2400 to 3700 TPD. Hock stated that he had observed haulers being “cut off at times
when waiting in line at the end of the day and not allowed to dump” at other sites. The proposed
facility and its longer operating hours would provide an option for haulers in the service area.
Hock detailed that he had reviewed transfer stations outside of the service area and opined that
no other transfer station took waste to Prairie View RDF on a regular basis. He stated that ERDS
will prevent clogging by incorporating features in the pipes that prevent clogging, performing
preventative cleaning, and designing the system so that it continues to work properly even if
clogging occurs. If the drains were to clog in detention pond 1, for example, the water will
continue to flow into the pond until it reaches a certain elevation level. At that point, the water
will not be able to flow into the pond and will flow “over the top of the trench drain and go down
to detention pond 2, which is where it’s intended to go to begin with.” He also stated that
freeboard would be included above the detention ponds to prevent “the movement and potential
splashing or blowing from wind.”
¶ 13 Hock also testified that 200 TPD is the “realistic initial volume” but that ERDS had the
capacity to take more waste into its proposed facility:
“Q. Mr. Hock, is 600 tons per day the maximum amount of
waste that the site is proposed to receive on a daily basis?
A. That is a throughput that we evaluated. We picked that
number because it’s a number that’s in the host agreement with
Will County that’s subject to fees, so it seemed like a logical thing
[to] evaluate.
9
We did not specify an exact maximum. In Illinois the IEPA
does not require you to do that. So we are asking for flexibility that
virtually every other transfer station has, that we will—your
maximum tonnage is really dictated by the operations and by the
facility itself.
So as long as you can meet all of the criteria in terms of
getting it in and out and not having the material on the floor at the
end of the night and transferring it all within the building, that’s
the criteria that is to be used.
I could—based on our evaluation there’s many scenarios
that we could adequately accept more than 600 tons per day. We
may never get there, but, for instance, if you were taking relatively
small amounts per hour over a large number of hours you could
potentially exceed 600 tons per day, and we could do it well within
the operational and design constraints of the facility.
***
Q. So in other words, what we have now established is the
applicant is requesting this Village to approve a solid waste
transfer station with no specific throughput capacity?
A. Correct, I thought I had been very clear on that.”
¶ 14 Hock modeled different traffic pattern scenarios with collection trucks and transfer
trailers. In the models, Hock used ERDS’s longest trailer and then considered other larger trailers
10
traveling through the facility. The models also included queuing of the trucks. However, Hock
stated that queuing will not be necessary a majority of the time.
¶ 15 Hock testified that, in a higher throughput scenario, when 16 trucks could be trafficking
the facility per hour, and even under 600 TPD, the facility would have 10 or fewer trucks moving
through the facility at one time because it would take the trucks a relatively short period of
time—six minutes—to enter, load/unload, and exit the facility. The proposed facility’s entrance
is 65 feet, while the Rockdale Transfer Station is 55 feet. Hock compared the entrance turn at
other transfer facilities and the entrance turn at the proposed facility and concluded that the
comparison had shown that the turn into other transfer facilities was more narrow than at the
proposed facility and, therefore, “the transfer trailers can readily make all the required turns at
the Moen Transfer Station.”
¶ 16 Sheryl Smith, Kurt Nebel, and Andy Nickodem testified on behalf of WMI. Smith, an
environmental consultant, opined that the proposed facility was not needed because (1) the Joliet
Transfer Station had sufficient disposal capacity to meet the needs of Will County, (2) there was
available capacity in or near Will County, (3) there were two transfer stations within 1.1 miles of
the proposed facility, (4) transporting waste out of Will County to more distant landfills would
be more expensive, and (5) Will County’s SWMP stated that transfer station development must
occur in the northern and eastern parts of the county.
¶ 17 Nebel, a WMI employee, testified that, in 2014, the Joliet Transfer Station accepted
between 852 and 1800 TPD. He stated that sometimes 30 loads of waste were left on the tipping
floor and discharged loads were partially outside the building. He also stated that WMI entered
into a hauling contract that would add about 150 TPD to the volume at the station.
11
¶ 18 Nickodem, a civil engineer specializing in the design of solid waste facilities, opined that
the proposed facility did not provide sufficient space for traffic delivering to and leaving from
the proposed facility. Nickodem did not believe there was enough available space for queuing
trucks and stated that the site was small and very crowded. He also stated that the stormwater
management plan lacked sufficient detail to determine if the plan was adequate.
¶ 19 Nickodem prepared a written report on the proposed facility. He used a program called
AutoTrack to recreate the proposed facility and track the movement of the trucks through the
facility. The sizes of the trucks were based on the designs given in the application. Nickodem
concluded that the transfer truck “uses up almost the entire [65-foot] entrance” to enter the
facility and that the trucks would have to make a perfect turn to enter. The entrance is so narrow
that, if other trucks are exiting the facility, the transfer trailers have to wait on Moen Avenue
until the entrance is clear to enter the facility. This will cause potential traffic backups onto
Moen Avenue. Furthermore, roll-off trucks are used to separate materials, and the roll-off boxes
to dispose of the unacceptable waste are difficult to access.
¶ 20 Devon Moose, an environmental engineer, testified on behalf of Will County. Moose
believed that the application had not provided sufficient detail to find the facility is necessary to
accommodate the waste needs of the service area. Moose opined that a needs analysis is used to
demonstrate the need for a facility and ERDS had not conducted this analysis. Moose stated that
there were already three transfer stations in the area “all working under their allowed capacity”
and believed it was difficult to demonstrate a need in the service area.
¶ 21 Moose opined that the proposed facility was too small and dangerous at 600 TPD.
Specifically, Moose stated that the proposed facility would be unable to queue trucks as detailed
in the application and that there was a lack of space on the tipping floor for sorting. Moose was
12
concerned with the traffic flow because the trucks would have to go against traffic, cross traffic,
and head-on traffic to get to the facility and queuing area. Moose also testified that the
stormwater management plan had “significant errors and problems” because there was no
clogging analysis, swale analysis, or conveyance pipe analysis, the orifice drains were too small,
and the detention basin was limited. He further opined that the design did not minimize danger to
surrounding area from fire, spills, and other operational accidents because of the lack of detail in
the application on storage, queuing, and flooding.
¶ 22 The hearing officer found that the Village Board had jurisdiction to review the
application but that ERDS failed to meet criteria (i), (ii), and (v). The officer recommended
adding special conditions to criteria (ii) and (v) in the siting approval.
¶ 23 Regarding criterion (i), the hearing officer determined that ERDS failed to meet the
criterion because ERDS’s evidence “contains no determination of the amount of waste requiring
disposal that is or could be directly hauled to a landfill or some other transfer station and
contains no calculation of transfer station capacity.”
¶ 24 Regarding criterion (ii), the hearing officer found that the evidence showed that the risk
for leachate from the proposed facility to the streets was “quite high.” Also, there was no place
for the transfer trailers and hauler trucks to operate at the same time.
¶ 25 Regarding criterion (v), the hearing officer found that the 65-foot entrance was too
narrow and the trucks would have to execute a perfect turn to avoid hitting the gate. Also, the
trucks would have more difficulty turning into the entrance depending on the weather. The
transfer trailer’s outbound lane crosses the inbound truck lane, which can cause backups and
safety issues. The roll-off trucks would have difficulty locating the roll-off boxes. ERDS failed
13
to discuss how the storage of equipment on the property would not affect the traffic flow and
inadequately explained traffic flow during the peak operations.
¶ 26 In September, the Village Board published ordinance No. 1026, conditionally approving
the application. It found that the notice requirements were met and that ERDS met all of the
criteria. It also found that ERDS met criteria (ii) and (v) subject to special conditions. The
Village Board adopted all of the hearing officer’s findings and conclusions except on criteria (i)
and except (ii) and (v) regarding the special conditions.
¶ 27 Under criterion (i), The Village Board found that ERDS’s evidence about improving
transportation, environmental, and economic matters was properly considered under criteria (i).
The Village Board determined that the application, Hock’s testimony, and written public
comments provided evidence that the proposed facility was necessary to assist the other transfer
stations with the overabundant supply of materials. The Village Board did not find Smith’s
testimony persuasive because she was not an engineer or licensed in any profession and her
testimony focused on whether a landfill is necessary. Smith testified that Citiwaste could provide
transfer capacity without taking into account that Citiwaste does not take in general refuse. Smith
believed that a transfer station was not necessary in the proposed location but did not know
where the “population centroid,” or center of the population, was located. She admitted that
generation versus disposal capacity analysis is not the only valid way to demonstrate need.
Furthermore, the Village Board also was not persuaded by the argument that ERDS needed to
conduct a transfer capacity analysis for waste production and waste disposal capacities.
¶ 28 Under criterion (ii), The Village Board determined that Hock’s testimony was “more
thorough and credible” and, thus, ERDS presented evidence sufficient to prove criteria (ii),
provided that ERDS complied with specified conditions. Those conditions included (1) a 300
14
TPD limit, (2) limiting the types of material accepted, (3) load checking, (4) running the
proposed facility in accordance with the application, and (5) review and approval of the village
engineer on the final design of the stormwater management system.
¶ 29 Under criterion (v), the Village Board found that ERDS met its burden of proof, provided
that it complied with specified conditions. Those conditions included (1) a 300 TPD limit with
the potential to temporarily exceed the limit up to 600 TPD; (2) additional personnel to direct
traffic; and (3) review and approval by the village engineer of the final site plan, traffic
circulation design, signage, and plan of operation to minimize the danger from any traffic
conflicts.
¶ 30 In October, Will County and WMI filed separate petitions, requesting the Illinois
Pollution Control Board to review the Village Board’s decision. The Pollution Board accepted
the petitions for review and consolidated the actions. The parties’ petitions alleged that the siting
application should not have been granted because (1) the Village Board had lacked jurisdiction to
rule on the siting application, and (2) the statutory criteria (i), (ii), (v), and (viii) for siting a
transfer station were not met. In April 2016, the Pollution Board found that (1) the Village Board
had jurisdiction to review the siting application; (2) the amendment to the application was
proper; and (3) the Village Board’s decision on criteria (i), (ii), (v), and (viii) was not against the
manifest weight of the evidence. Petitioners appealed the Pollution Board’s decision to this
court.
¶ 31 Appellate Proceedings
¶ 32 This court issued an opinion in this case on July 5, 2018, unanimously affirming the
decision of the Pollution Board approving the application of ERDS to locate a transfer station at
a designated site in Will County. On July 26, 2018, appellant, WMI, filed a petition for rehearing
15
arguing that the Pollution Board had made insufficient arguments on which this court could base
a reasoned decision.
¶ 33 After careful consideration of the petition, one member of the original majority was
persuaded by its arguments and now dissents from the earlier opinion. The remaining panel
members adhere to the original decision but have supplemented the analysis.
¶ 34 We deny the petition for rehearing but modify the majority opinion and incorporate the
new dissent.
¶ 35 ANALYSIS
¶ 36 I. Notice Requirements
¶ 37 Petitioners argue that ERDS did not comply with the notice requirements of section
39.2(b) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(b) (West 2014)) because
Hock’s testimony that ERDS proposed a 600 TPD, and later an unlimited throughput, incorrectly
described “the nature and size” of the proposed facility. Therefore, petitioners contend that the
Village Board lacked jurisdiction to review the application. Respondents claim that the
application proposed that the facility would handle an average of 200 TPD and that this
statement was sufficient to notify interested persons about the nature and size of the facility in
compliance with section 39.2(b). Furthermore, respondents assert that waste capacity is not
relevant to the nature and size of the facility and, therefore, respondents did not violate the
provision in section 39.2(b).
¶ 38 The requirements of section 39.2(b) must be followed in order for the county board to
have jurisdiction to hear the proposal. Maggio v. Pollution Control Board, 2014 IL App (2d)
130260, ¶ 15. Section 39.2(b) states:
16
“No later than 14 days before the date on which the county board
or governing body of the municipality receives a request for site
approval, the applicant shall cause written notice of such request to
be served either in person or by registered mail, return receipt
requested, on the owners of all property within the subject area not
solely owned by the applicant, and on the owners of all property
within 250 feet in each direction of the lot line of the subject
property ***.
***
Such notice shall state the name and address of the
applicant, the location of the proposed site, the nature and size of
the development, the nature of the activity proposed, the probable
life of the proposed activity, the date when the request for site
approval will be submitted, and a description of the right of
persons to comment on such request as hereafter provided.” 415
ILCS 5/39.2(b) (West 2014).
¶ 39 The purpose of section 39.2(b) is to notify interest persons about an applicant’s intention
to develop, in this case, a new transfer facility. Tate v. Pollution Control Board, 188 Ill. App. 3d
994, 1019 (1989). “The notice is sufficient if it is in compliance with the statute and it places
potentially interested persons on inquiry about the details of the activity.” Id.
¶ 40 In Tate, the petitioners argued that the county board lacked jurisdiction to review an
application for the expansion of a landfill because the respondent failed to accurately describe
the floodplain location, the facility’s height expansion, or the facility’s special waste activity. Id.
17
at 1017. The Fourth District explained that the statute did not specifically require that this
information be included in the notice and concluded that the notice complied with the
requirements of section 39.2(b). Id. at 1019.
¶ 41 In Daubs Landfill, Inc. v. Pollution Control Board, 166 Ill. App. 3d 778, 779 (1988), the
Fifth District reviewed whether the county board lacked jurisdiction because the siting
application inaccurately stated the legal description of the proposed landfill. The court stated that
section 39.2(b) did not specifically require the legal description in a notice; rather, the section
only requires the “ ‘location of the proposed site.’ ” Id. at 780 (quoting Ill. Rev. Stat. 1985, ch.
111½, ¶ 1039.2(b)). The court further explained that, although there was a discrepancy between
the legal and narrative description, interested persons would have inquired about the discrepancy
and would not have relied solely on the legal description. The court found that the narrative
description of the proposed landfill alone provided interested persons with notice of the location
of the proposed facility.
¶ 42 The Act requires that we construe this statute liberally. 415 ILCS 5/2(c) (West 2014)
(“[t]he terms and provisions of this Act shall be liberally construed so as to effectuate the
purposes of this Act”). Furthermore, we will not misinterpret the statute by reading into it
exceptions, limitations, or conditions that the legislature did not express. Petersen v. Wallach,
198 Ill. 2d 439, 446 (2002). Similar to the courts’ interpretation in Daubs and Tate, section
39.2(b) does not specifically require applicants to include the waste capacity of the facility
within the notice. We do recognize that waste capacity is an important factor when considering
section 39.2(a) criteria. See M.I.G. Investments, Inc. v. Environmental Protection Agency, 122
Ill. 2d 392, 401 (1988). Even with this acknowledgement, however, we believe interested
persons received sufficient notice. ERDS stated that it would “handle an average 200 tons per
18
day of solid waste.” (Emphasis added.) This put all interested parties on notice that the amount of
TPD would vary. Similar to Daubs, it is unlikely that interested persons would have ignored the
term “average” and would have relied solely on ERDS handling 200 TPD. Moreover, if any
interested persons wanted to learn more about the waste amount, they could have inquired about
it in the application, as the notice stated when ERDS would file the application and where it
would be available for review. The application stated that the proposed facility “may desire to
accept more than 200 [TPD] of waste.” Thus, we find that the Village Board had jurisdiction to
review the siting application.
¶ 43 II. Application Amendments
¶ 44 Will County claims that ERDS improperly amended the application twice in violation of
section 39.2(e) of the Act (415 ILCS 5/39.2(e) (West 2014)). Specifically, Will County alleges
that Hock’s testimony that ERDS proposed 600 TPD, and later an unlimited throughput, were
amendments to the application in violation of section 39.2(e), which permits only one
amendment. Respondents assert that the application was only amended once in accordance with
section 39.2(e) and that information about the 600 TPD and unlimited throughput was also
included in the original application.
¶ 45 Section 39.2(e) states:
“At any time prior to completion by the applicant of the
presentation of the applicant’s factual evidence and an opportunity
for cross-questioning by the county board or governing body of the
municipality and any participants, the applicant may file not more
than one amended application upon payment of additional fees
pursuant to subsection (k).” Id.
19
¶ 46 The application was only amended once in accordance with section 39.2(e). ERDS filed
an “ERRATA,” and the hearing officer determined it was an amendment to the application. Will
County’s argument that Hock’s testimony was a second amendment in violation of section
39.2(e) is without merit because Hock’s testimony regarding the 600 TPD and the unlimited
throughput was also in the application. In particular, the application stated that the proposed
facility “may desire to accept more than 200 [TPD] of waste. The facility’s Host Agreement with
Will County indicates that a fee will be paid to Will County for every ton of waste accepted over
600 [TPD].” Thus, we hold that ERDS did not violate section 39.2(e).
¶ 47 III. Conditions
¶ 48 Petitioners allege that the Village Board improperly imposed conditions under criteria (ii)
and (v) when approving the application. In particular, petitioners claim that the Village Board
adopted the findings and conclusions of the hearing officer’s report, which stated that ERDS did
not meet, inter alia, criteria (ii) and (v). Petitioners claim that the Village Board cannot place
conditions on criteria it determined were not met because the plain language of section 39.2(a)
states approval is granted only when all nine criteria have been met. Respondents assert that
section 39.2(e) permits the board to impose conditions on siting approval.
¶ 49 Petitioners raise an issue of statutory interpretation. The primary objective of statutory
interpretation is to determine and give effect to the legislature’s intent. People v. Jones, 214 Ill.
2d 187, 193 (2005). The language within the statute must be given its plain and ordinary
meaning. Hadley v. Illinois Department of Corrections, 224 Ill. 2d 365, 371 (2007). “Where the
statutory language is clear, it will be given effect without resort to other aids of construction.” Id.
An issue of statutory interpretation is reviewed de novo. Hamilton v. Industrial Comm’n, 203 Ill.
2d 250, 254-55 (2003).
20
¶ 50 Section 39.2(e) states:
“In granting approval for a site the county board or governing body
of the municipality may impose such conditions as may be
reasonable and necessary to accomplish the purposes of this
Section and as are not inconsistent with regulations promulgated
by the Board.” 415 ILCS 5/39.2(e) (West 2014).
¶ 51 Section 39.2(e) states that the board may “impose such conditions as may be reasonable
and necessary to accomplish the purposes of this Section.” (Emphasis added.) Id. Thus, if the
conditions will help ERDS meet the criteria, i.e., accomplish the purpose of the section, then the
board may impose them. In fact, the Fifth District found that conditions placed on a site approval
supported the Pollution Board’s finding that a criterion was met. File v. D&L Landfill, Inc., 219
Ill. App. 3d 897, 908 (1991) (finding that conditions placed on site approval help to minimize
incompatibility with surrounding area and, thus, the Pollution Board’s finding that the criterion
was met was not against the manifest weight of the evidence). Therefore, we hold that the
Village Board’s imposition of conditions was proper.
¶ 52 IV. Section 39.2(a) Criteria
¶ 53 Petitioners contend that the Pollution Board’s decision, affirming the Village Board’s
findings and consequently granting the approval of the siting application, was against the
manifest weight of the evidence because ERDS had not met criteria (i), (ii), (v), and (viii) under
section 39.2(a) of the Act (415 ILCS 5/39.2(a) (West 2014)).
¶ 54 Section 39.2(a) states:
“(a) The county board of the county or the governing body of the
municipality, as determined by paragraph (c) of Section 39 of this Act,
21
shall approve or disapprove the request for local siting approval for each
pollution control facility which is subject to such review. An applicant for
local siting approval shall submit sufficient details describing the proposed
facility to demonstrate compliance, and local siting approval shall be
granted only if the proposed facility meets the following criteria:
(i) the facility is necessary to accommodate the waste needs
of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be
operated that the public health, safety and welfare will be
protected;
***
(v) the plan of operations for the facility is designed to
minimize the danger to the surrounding area from fire, spills, or
other operational accidents;
***
(viii) if the facility is to be located in a county where the
county board has adopted a solid waste management plan
consistent with the planning requirements of the Local Solid Waste
Disposal Act or the Solid Waste Planning and Recycling Act, the
facility is consistent with that plan; for purposes of this criterion
(viii), the ‘solid waste management plan’ means the plan that is in
effect as of the date the application for siting approval is filed[.]”
Id.
22
¶ 55 Although the board is required to review all criteria, the application is insufficient when
one criterion has not been met. Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d)
100017, ¶ 90. The reviewing court must not reweigh the evidence. Id. ¶ 88. It must be clearly
evident from the record that the Pollution Board should have reached the opposite conclusion
before a reviewing court reverses the Pollution Board’s decision. Peoria Disposal Co. v. Illinois
Pollution Control Board, 385 Ill. App. 3d 781, 800 (2008). “It has been held that a determination
on the second criterion is purely a matter of assessing the credibility of the expert witnesses.”
Fox Moraine, 2011 IL App (2d) 100017, ¶ 102. The Pollution Board’s decision is reviewed
under the manifest weight of the evidence standard. Id. ¶ 87 (citing Town & Country Utilities,
Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 119 (2007)).
¶ 56 A. Criterion (i)
¶ 57 Petitioners argue ERDS had not met criterion (i) because (1) it failed to conduct a transfer
capacity analysis of transfer stations serving the proposed service area to demonstrate a need for
the proposed facility; (2) it failed to conduct a transfer capacity analysis of transfer stations
serving the proposed service area but located outside of the area to demonstrate a need for the
proposed facility; (3) it did not provide evidence that the proposed facility would increase
competition, keep prices down, and efficiently transport waste to the Prairie View RDF; and
(4) it did not provide a determinative amount of waste that would be directed to Prairie View
RDF or another transfer station. Citing Fox Moraine, 2011 IL App (2d) 100017, ¶ 110,
respondents allege that ERDS does not need to show an “absolute necessity” for a new facility
and, thus, a transfer capacity analysis is not necessary to find that it sufficiently met criterion (i).
¶ 58 Here, respondents have shown that the proposed facility is necessary to accommodate the
waste needs of the service area. The evidence indicates that there were three transfer stations in
23
the service area and two were limited in the amount and type of waste they received. For
instance, the Rockdale Transfer Station took only recyclables, and the Citiwaste Transfer Station
took only clean construction and demolition debris, landscape waste, and recyclables. The Joliet
Transfer Station is the only municipal solid waste transfer station in the service area. It was
currently accepting more TPD than in its past years, and it was observed that the station had
large amounts of waste on the tipping floor. Moreover, it had been observed cutting off trucks
waiting in line, and consequently, the trucks were not allowed to dump. Nebel, a WMI employee,
testified that sometimes 30 loads of waste were left on the tipping floor and discharged loads
were partially outside the building. There was a capacity shortfall of 853 to 2046 TPD in the
service area because the Joliet Transfer Station was currently generating more than double the
amount of its average volume and it had been observed to be operating beyond capacity. Also,
there are three landfills in the service area; however, the SWMP and the Prairie View RDF host
agreement state that “as much waste as practical” in the service area should be disposed at Prairie
View RDF. The amount of waste entering Prairie View RDF remained consistent from 2007 to
2011 but decreased by 30% from 2011 to 2013. Yet the population is expected to increase by
40% by 2040. The proposed facility will increase competition to the service area and increase
transfer capacity. It will also provide benefits to the village of Rockdale pursuant to the host
agreement, provide benefits to Will County as more waste will be disposed at Prairie View RDF,
have longer operational hours than the Joliet Transfer Station, and reduce environmental impacts.
Although Smith testified on behalf of WMI that the proposed facility was not a necessity, the
Pollution Board considered that the Village Board did not find her arguments persuasive for the
various reasons stated above, and credibility findings will not be reweighed. See id. ¶ 88.
24
Therefore, we determine that the Pollution Board’s ruling that ERDS had met criterion (i) was
not against the manifest weight of the evidence.
¶ 59 Petitioners’ argument that ERDS failed to meet criterion (i) because it did not conduct a
transfer capacity analysis of the transfer stations is unpersuasive. Respondents do not need to
show “absolute necessity” for a new facility. Id. ¶ 110. Rather, respondents must show an
“urgent need” for the facility and a “reasonable convenience of establishing it.” Id. Respondents
have demonstrated this in the evidence presented in the record.
¶ 60 The dissent states that, in relying on the Village Board’s determinations, the Pollution
Board ignored two errors in ERDS’s application: (1) ERDS failed to calculate the disposal
shortfall in accordance with the amount of waste generate by the entire service area, and
(2) ERDS failed to take into consideration the disposal capacity of direct haul options and the
capacity of existing transfer stations in the entire service area. The dissent reasons that this
miscalculation is evidence that the Pollution Board did not conduct a thorough and independent
analysis of the evidence as contemplated in Town & Country Utilities, Inc. v. Illinois Pollution
Control Board, 225 Ill. 2d 103, 121 (2007), and therefore, this court could not review the
Pollution Board’s decision. We do not agree.
¶ 61 In the siting application (supra ¶ 6) and during John Hock’s testimony (supra ¶ 12),
ERDS explained that there was a disposal capacity shortfall between 853 to 2046 tons per day in
the service area because the Joliet station was currently generating more than double the amount
of its average volume. Although ERDS’s calculations are specifically about the disposal capacity
shortfall at the Joliet station, there is no indication that ERDS miscalculated the shortfall, as the
Joliet station could be the only station with a shortfall in the area. Section 39.2(a)(i) of the
Environmental Protection Act (415 ILCS 5/39.2(a)(i) (West 2016)) does not mandate that ERDS
25
show a disposal capacity shortfall at all the stations in the entire area; rather, it states that ERDS
must demonstrate “the facility is necessary to accommodate the waste needs of the area it is
intended to serve.”
¶ 62 Here, the Pollution Board properly considered evidence that the proposed facility is
necessary to accommodate the waste needs of the area it is intended to serve pursuant to section
39.2(a)(i) for two reasons. First, it was proper for the Pollution Board to consider the Village
Board’s decision, as the Pollution Board could not disturb the decision unless it was against the
manifest weight of the evidence. Peoria Disposal Co. v. Illinois Pollution Control Board, 385 Ill.
App. 3d 781, 800 (2008) (finding that the appropriate standard for Pollution Board is whether
local siting authority’s decision is against manifest weight of the evidence). Second, in its written
decision, the Pollution Board wrote a lengthy discussion on the arguments of each party and the
evidence and testimony that each party presented. The Pollution Board also addressed the
evidence it considered sufficient to meet criteria (i) of section 39.2(a):
“ERDS provided evidence regarding the disposal capacity
of landfills in the service area. [Citation.] ERDS also provided a
discussion in the application regarding the transfer stations in the
area including Joliet Transfer Station and discussed the amount of
waste accepted daily. [Citation.] The application listed transfer
stations outside the service area and provided information on some
of those facilities. Id. Additionally, Mr. Hock testified about his
personal observations that the Joliet Transfer Station was
overburdened and that at the current rate of generation there was a
shortfall of transfer station capacity. [Citation.] ERDS also
26
provided evidence that the siting of the transfer station would offer
benefits.
Based on this record, the Board finds that the Village’s
decision is supported by evidence in the record. Therefore, the
Board finds that the Village’s decision is not against the manifest
weight of the evidence and affirms the Village’s decision on
criterion I.”
¶ 63 We agree with the Pollution Board that its decision is supported by the record. In addition
to the Joliet station’s disposal capacity shortfall, ERDS stated that the Joliet station was the only
station that transferred municipal solid waste in the entire service area, that an overflow of waste
was observed at the station, and that the station was cutting off trucks waiting in line to dump
waste. Although the SWMP and Prairie View RDF host agreement states that as much waste as
practical must be disposed of at Prairie View RDF, the amount of waste disposed of at the site
decreased by 30% while the population is expected to increase by 40%. The proposed station
would provide additional assistance in the area where the other stations do not accept municipal
solid waste and where the Joliet station, the only station accepting municipal waste, is beyond
capacity.
¶ 64 B. Criterion (ii)
¶ 65 Petitioners claim ERDS had not met criterion (ii) because (1) it had not provided
evidence that the stormwater management plan would safeguard the public from flooding in
violation of the Will County Stormwater Ordinance, (2) the recorded peak water level in the
detention system was not compliant with the Stormwater Ordinance, and (3) it had not provided
evidence that the public will be safe from the traffic conflicts within the proposed facility.
27
¶ 66 Section 203.6, part F of the Stormwater Ordinance states: “Storage facilities shall be
designed such that the existing conditions pre-development peak runoff rate from the 100-year,
critical duration rainfall will not be exceeded assuming the primary restrictor is blocked.” Under
this section, petitioners allege that if the orifices within the detention ponds are clogged,
stormwater will overflow and flood onto Moen Avenue.
¶ 67 The evidence revealed that the water management system is designed to control and
manage runoff from developed areas for a 100-year critical duration storm event. ERDS planned
to prevent clogging by incorporating features in the pipes that prevent clogging, to perform
preventative cleaning, and to design the system so that it continues to work properly even if
clogging occurs. If a drain were to clog, the pond would stop receiving water at a certain
elevation level and water would be directed to detention pond 2, which discharges the water out
of the facility.
¶ 68 Petitioners further assert that the Stormwater Ordinance requires that the peak stages of
the detention system be below finished floor elevation. Petitioners argue that the lowest floor
elevation is 571.00 feet mean sea level (msl) but that detention pond 1’s peak water elevation is
577.91 feet msl. Also, petitioners argue that the Stormwater Ordinance requires one foot of
freeboard above the design high water level and detention ponds 1 and 2 do not have the
freeboard in the facility design.
¶ 69 However, Hock testified that freeboard will be included to prevent “the movement and
potential splashing or blowing from wind.” Also, the evidence shows that the initial elevation
level is 571 feet msl while the maximum elevation level for detention pond 1 is 578 feet msl. The
peak water elevation level from detention pond 1 is, therefore, below the maximum elevation
28
level, and petitioners have failed to show how the peak level being below the maximum
elevation level did not meet the requirements of the design criteria within the siting application.
¶ 70 Also, the evidence shows that Hock presented different traffic scenarios using ERDS’s
largest collection truck model and a large transfer trailer model. The application revealed that the
collection trucks’ and transfer trailers’ estimated activity time in the facility was relatively short
and that the queuing area would prevent backup onto Moen Avenue and on-site traffic. Hock
testified that, in a higher throughput scenario, the facility would have 10 or fewer trucks moving
through the facility at one time because it would take the trucks a relatively short period to enter,
load/unload, and exit the facility. Hock’s comparison had shown that the turn into other transfer
facilities was narrower than at the proposed facility and, therefore, “the transfer trailers can
readily make all the required turns at the Moen Transfer Station.”
¶ 71 Petitioners argue that the traffic conflicts within the facility are a threat to public safety
because the 65-foot driveway is too narrow and will cause backup on Moen Avenue. However,
section 39.2(a) does not require the elimination of all traffic problems but requires only a
showing that “the traffic patterns to and from the facility are designed to minimize impact on
existing traffic flows.” In this case, respondents showed that the facility was designed to
minimize the impact of existing traffic flows when Hock testified about the queuing areas and
the relatively short activity time in the facility. Furthermore, the Pollution Board noted that the
Village Board believed Hock’s testimony was “more thorough and credible,” and we will not
reweigh the evidence. Therefore, we find the Pollution Board’s decision that ERDS had met
criterion (ii) was not against the manifest weight of the evidence.
¶ 72 C. Criterion (v)
29
¶ 73 Petitioners contend that ERDS did not meet criterion (v) because it failed to provide
evidence that the proposed facility was designed to “minimize the danger from operational
accidents arising out of on-site movements.”
¶ 74 Under criterion (v), the focus is on safety “with the emphasis on planning to avoid or
minimize the danger from catastrophic accidents.” Industrial Fuels & Resources/Illinois, Inc. v.
Pollution Control Board, 227 Ill. App. 3d 533, 547 (1992). “There is no requirement that the
applicant guarantee no accidents will occur, for it is virtually impossible to eliminate all
problems.” Wabash & Lawrence Counties Taxpayers & Water Drinkers Ass’n v. Pollution
Control Board, 198 Ill. App. 3d 388, 394 (1990).
¶ 75 The evidence reveals that the proposed facility includes design and operational features
that will minimize the danger to the surrounding area from fire and spills. The incident
prevention and response plan within the siting application details fire, spill, and accident
prevention and responses. The facility will have a safety officer, and the building is a “pre-
engineered metal building” equipped with a sprinkler system. Employees will be trained, and
equipment will be cleaned to remove any combustible waste. The facility will not accept liquid
waste, and any liquid found on the tipping floor will be drained, processed, and discharged into a
sewer system. No liquid from the tipping floor will be discharged to the stormwater management
system.
¶ 76 Furthermore, the evidence shows that the proposed facility will minimize the danger from
operational on-site vehicle accidents. ERDS planned to hire a safety officer who will be
responsible for implementing procedures to prevent operational accidents and coordinating
responses to incidents or emergencies. The map of the proposed facility depicts traffic arrows
and stop signs on the roadway to guide the trucks through the facility. Furthermore, the Village
30
Board placed certain conditions to help minimize any traffic conflicts, including adding
additional personnel to direct traffic during peak hours and having the plan of operation to
minimize the danger of traffic conflicts reviewed and approved by the village engineer. As we
determined above, the Village Board may impose conditions necessary to accomplish the goals
of section 39.2(a). Thus, we rule that the Pollution Board’s decision that ERDS had met criterion
(v) was not against the manifest weight of the evidence.
¶ 77 D. Criterion (viii)
¶ 78 WMI asserts that the application was not consistent with certain provisions in chapters
four and five of the Will County SWMP that state a transfer station should be located in the
northern and eastern parts of the county and that WMI is responsible for ensuring the
development of transfer station networks to serve the county’s needs in compliance with section
39.2(a)(viii). Respondents argue that the plan allows other companies to develop a transfer
station network and that WMI does not have sole right to site a transfer station.
¶ 79 Chapter four, page four, of the Will County SWMP’s 2001 update states, “Selected
contractor may desire to site transfer stations in northern and eastern parts of the County.” It also
states, “One transfer station needed in both northern and eastern parts of the County.” Chapter 5,
page 17, of the SWMP requires that a new pollution control facility in Will County must
negotiate a host agreement with the county before any determinations are made by the county.
¶ 80 Chapter 5, page 18, states, “The County will not pursue the development of a County-
owned transfer station, rather the County will allow the private-sector to develop a transfer
station network as it deems appropriate and pursuant to the terms of the Host and Operating
Agreement for the Prairie View RDF.” The Host and Operating Agreement for Prairie View
RDF states, “Operator shall insure that such Interim and Final Disposal Facilities are combined
31
with a network of new and/or existing transfer facilities necessary and satisfactory to meet and
address the ongoing solid and special waste disposal needs of the Will County Service Area over
the term of this Agreement.” WMI is listed as the operator in the agreement.
¶ 81 There is nothing in the record that shows that the application was not in compliance with
the Will County SWMP. The provisions that WMI cites did not give WMI exclusive control to
site a transfer station and do not limit the location of a transfer station to the northern and eastern
parts of the county. Therefore, we hold that the Pollution Board’s ruling that ERDS met criterion
(viii) was not against the manifest weight of the evidence.
¶ 82 V. Sufficiency of the Application
¶ 83 Lastly, petitioners argue that ERDS did not “submit sufficient details describing the
proposed facility” in accordance with section 39.2(a) because the Village Board could not
evaluate the criteria without an exact proposed waste throughput.
¶ 84 Section 39.2(a) explains that “[a]n applicant for local siting approval shall submit
sufficient details describing the proposed facility to demonstrate compliance.” 415 ILCS
5/39.2(a) (West 2014). Under section 39.2, it is important to show that a proposed facility is
“reasonably required by the waste needs of the area, including consideration of its waste
production and disposal capabilities.” Fox Moraine, 2011 IL App (2d) 100017, ¶ 110. As
discussed above, we found that ERDS provided sufficient evidence of its waste production and
disposal capabilities and that the Pollution Board’s decision was not against the manifest weight
of the evidence. Thus, we find that ERDS provided sufficient details to describe the proposed
facility to comply with section 39.2(a).
¶ 85 CONCLUSION
¶ 86 The judgment of the Illinois Pollution Control Board is affirmed.
32
¶ 87 Affirmed.
¶ 88 JUSTICE WRIGHT, dissenting:
¶ 89 In this case, appellant, Waste Management of Illinois, Inc. (WMI), filed a petition for
rehearing of our prior opinion pursuant to Illinois Supreme Court Rule 367(b) (eff. Nov. 1,
2017). Upon reconsideration, I now respectfully dissent and withdraw my prior concurrence. I
understand the complications and frustrations arising from my decision to withdraw my support
for an opinion that represented a unanimous decision from this panel on all issues.
¶ 90 I begin by focusing on the third contention addressed in the request for rehearing. With
respect to criteria (i), the Pollution Board punted and blindly accepted the applicant’s
calculations, adopted by the Village Board. Had the Pollution Board conducted its own in-depth
examination of the evidence of record, the Pollution Board would have recognized the shortfall
of disposal capacity within the expansive tri-county service area was improperly calculated by
the applicant’s witness. 1
¶ 91 I now conclude that there is a gaping hole in the evidence that the Pollution Board
overlooked. The evidence gap arises from two errors. First, the applicant’s evidence regarding
purported disposal shortfall erroneously compared the total amount of waste generated by the
entire service area to the limited waste disposal capacity of a single county, Will County.
Second, the applicant’s evidence regarding purported disposal shortfall ignored the disposal
capacity of direct haul options and the capacity of existing transfer stations in the entire service
area. Had the Pollution Board conducted its own in-depth analysis of the evidentiary basis for the
applicant’s conclusions about a shortfall, these errors resulting in incompetent evidence
concerning the shortfall would have been discovered by the Pollution Board.
1
This service area appears to be defined to include the applicant’s customer base situated in Will,
Grundy, and Kendall Counties and various isolated municipalities located in other counties.
33
¶ 92 Regardless, the Pollution Board’s order does not reveal the specific numerical values of
municipal solid waste generation and disposal capacity that the Pollution Board considered from
the record before concluding a disposal capacity shortfall existed. This omission of the Pollution
Board’s precise factual basis for the conclusions regarding necessity makes an in-depth analysis
of the Pollution Board’s findings impossible.
¶ 93 In County of Kankakee v. Pollution Control Board, our court discussed the language of
sections 39.2 and 40.1 of the Environmental Protection Act (Act). See 396 Ill. App. 3d 1000,
1007 (2009); 415 ILCS 5/39.2, 40.1 (West 2004). Our court wisely observed that “the local
siting approval is just the first step *** in the process to approve or disapprove a siting
application.”(Emphasis in original.) County of Kankakee, 396 Ill. App. 3d at 1007. The Pollution
Board completes the bifurcated administrative process that is necessary before judicial review of
the conditional approval pertaining to this particular siting application. Town & Country Utilities,
Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 121 (2007).
¶ 94 Based on my understanding of the carefully reasoned guidance from our supreme court in
the holding of Town and Country, when one party disagrees with the first tier decision of the
local siting authority, judicial review cannot take place until the Pollution Board steps in and
independently makes a second tier determination based on the Pollution Board’s independent
consideration of the record. See id. at 120-121. I respectfully observe that, much like the often
defended importance of judicial independence, the Pollution Board’s independence is equally
important to the siting approval process and should be strictly required and protected during the
process of direct judicial review of the Pollution Board’s order.
¶ 95 I write separately to point out that the familiar process of direct judicial review arising
out of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2016)) normally allows
34
our court to look backwards from the circuit court’s decision and solely focus our review on the
decision of the administrative agency. Typically, we do not review the conclusions of the first
level of review in the circuit court. However, the statutory limitations for this court, based on the
Act, create a different procedure. Here, our court does not glance backward to review the
findings of the Village Board in this case, or any decision that preceded the Pollution Board’s
final administrative order in other cases. See Town & Country Utilities, Inc., 225 Ill. 2d at 121-
23; see also County of Kankakee, 396 Ill. App. 3d at 1004; Peoria Disposal Co. v. Illinois
Pollution Control Board, 385 Ill. App. 3d 781, 800 (2008). Consequently, I have attempted to
avoid looking back or indirectly reviewing the Village Board’s findings as factual support for the
Pollution Board’s order.
¶ 96 The bifurcated approval process for a siting application is worthy of some discussion
because the statutory scheme involves much legislative foresight. First, the lawmakers require
the local authority to conduct the hearing on the siting application. To me, this makes good sense
because the Pollution Board reviews the record created by a qualified hearing officer, on the
local level, where live public commentary is most easily facilitated due to the location of the
hearing. See Town & Country Utilities, Inc., 225 Ill. 2d at 120; Kane County Defenders, Inc. v.
Pollution Control Board, 139 Ill. App. 3d 588, 593 (1985).
¶ 97 Second, the lawmakers provided that a hearing officer conducting the local hearing must
be “qualified.” 415 ILCS 5/32 (West 2016). I presume the purpose of this provision is to ensure
the hearing officer has experience in pollution control and/or legal training, as needed to develop
a coherent and complete record for the Pollution Board to consider with a fresh eye. In this case,
neither party took issue with the qualifications of the hearing officer, Derke J. Price. Neither
35
party criticized the fairness, neutrality, or basis for the hearing officer’s findings that the Village
should deny the siting application.
¶ 98 Next, with great insight, our lawmakers set forth detailed qualifications for the appointed
Pollution Board members assigned the duty to review a local authority’s siting decision.
Specifically, the Act provides as follows: “[T]he Board shall consist of 5 technically qualified
members, no more than 3 of whom may be of the same political party” and who “shall have
verifiable technical, academic, or actual experience in the field of pollution control or
environmental law and regulation.” Id. § 5(a). Hence, the final credibility and competency
decisions are solely entrusted to five individuals with diverse political backgrounds but common
technical expertise.
¶ 99 In fact, the case law recognizes that the Pollution Board is best qualified to make the
necessary and independent determinations of “what weight to give to the evidence” and “resolve
any conflicts” in the evidence contained in the record. Peoria Disposal Co., 385 Ill. App. 3d at
801. I contend that the interests of the entire tri-county service area, as defined by ERDS, are
well served by assigning the resolution of the weight of the evidence and the resolution of
conflicting evidence to the Pollution Board, rather than entrusting these very complex questions
to a small village board within a large tri-county service area. Once the Pollution Board
independently completes the second step in the siting process, the Pollution Board’s final
administrative decision becomes ripe for direct review by an appellate court of law.
¶ 100 Typically, a mixed question of law and fact decided by an administrative agency, such as
the Pollution Board, would be judicially reviewed by this court using the clearly erroneous
standard that pays great deference to the conclusions of the administrative agency. See AFM
Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391-92 (2001).
36
However, the Act, enacted by the legislature, sets forth a different standard of judicial review. In
fact, the legislature decided that “[a]ny final order of the Board under this Act *** shall be
invalid if it is against the manifest weight of the evidence.” (Emphasis added.) 415 ILCS 5/41(b)
(West 2016). Reviewing courts have interpreted this statutory language to require a reviewing
court to apply the manifest weight of the evidence standard to both the Pollution Board’s
independent factual findings and the Pollution Board’s legal conclusions about the sufficiency of
the evidence. See Peoria Disposal Co., 385 Ill. App. 3d at 800-01. The Pollution Board’s
independent finding, subject to our review, is not present in the record. Instead, the Pollution
Board arbitrarily adopted the findings of the Village Board. On this basis, the Pollution Board’s
determination that the Village Board’s decision was correct was completely arbitrary, in my
view. An arbitrary decision is always contrary to the manifest weight of the evidence. See Best v.
Best, 223 Ill. 2d 342, 348-50 (2006).
¶ 101 I recognize the 40-page decision of the Pollution Board contains a lengthy recitation of
the arguments based on each party’s perspective of the evidence presented to the Village hearing
officer before the Village Board rejected the hearing officer’s recommendations. As stated above
in paragraph 95, our court does not review the findings of the Village Board or even the Village
hearing officer. See Town & Country Utilities, Inc., 225 Ill. 2d at 121-23; see also County of
Kankakee, 396 Ill. App. 3d at 1004; Peoria Disposal Co., 385 Ill. App. 3d at 800. Consequently,
the conflicting findings of the Village hearing officer and the Village Board that hired this
particular hearing officer are irrelevant. I submit the arguments presented to the Village hearing
officer during the local hearing should play no role in the Pollution Board’s analysis now subject
to our review in this appeal.
37
¶ 102 For this reason, I conclude the pages and pages of the summarized arguments presented
to the hearing officer during the local hearing did not deserve a passing glance from the Pollution
Board. Instead, the Pollution Board was required to independently determine the facts
established by the manifest weight of the evidence. If those facts caused the Pollution Board to
reach the same conclusion as the Village hearing officer, the conditional application should have
been denied by the Pollution Board.
¶ 103 I reiterate that since the Village hearing officer and the Village Board reached opposite
conclusions based on the same evidence and arguments, the Pollution Board had an independent
duty to reweigh all of the evidence in the record. In so doing, the Pollution Board was required to
determine whether the manifest weight of the evidence pointed to the conclusion reached by the
Village’s hearing officer or the Village Board. Unfortunately, a scavenger hunt is necessary to
locate the scant, unsupported findings of the Pollution Board following a purported independent
review of the manifest weight of the evidence introduced during the local hearing. These
“findings” fill less than a page and a half of the 40-page decision. For the convenience of the
reader, the sparse findings by the Pollution Board, scattered throughout the decision, are
separately set forth below.
¶ 104 I. Criterion (i)
¶ 105 With respect to criterion (i), the Pollution Board finds as follows: “Based on this record,
the Board finds that the Village’s decision is supported by evidence in the record. Therefore, the
Board finds that the Village’s decision is not against the manifest weight of the evidence and
affirms the Village’s decision on criterion I.”
¶ 106 II. Criterion (ii)
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¶ 107 With respect to criterion (ii), the Pollution Board finds as follows: “The Board finds that
the Village’s decision is not against the manifest weight of the evidence. The Village weighed
the credibility of the witnesses and found Mr. Hock more persuasive and credible. The Board
does not reweigh the evidence; therefore, the Board affirms the Village’s decision [on criterion
(ii)].”
¶ 108 III. Criterion (v)
¶ 109 With respect to criterion (v), the Pollution Board finds as follows: “Mr. Hock testified
that the design of the facility met criterion V and Mr. Moose disagreed. The Board does not
reweigh the evidence. *** [T]he Board finds that the Village’s decision has support in the record
and therefore, the Board finds the Village’s decision was not against the manifest weight of the
evidence. The Board affirms the Village’s decision on criterion V.” (Emphasis added.)
¶ 110 IV. Criterion (viii)
¶ 111 With respect to criterion (viii), the Pollution Board finds as follows: “This evidence is
sufficient for the Village to find that the siting of the transfer station is consistent with the
SWMP. While WMI argues that the plan requires siting in only the eastern or northern parts of
Will County, the record indicates that that [sic] provision applies only to a “ ‘selected
contractor.’ ”
¶ 112 Based on the Pollution Board’s skeletal, but independent findings reproduced above, I am
troubled by two recurring themes. First, the Pollution Board consistently misstates the nature of
the manifest weight of the evidence standard of review. Of course the Pollution Board does not
reweigh the evidence because the Pollution Board must first weigh the evidence using the
manifest weight standard.
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¶ 113 It is disconcerting to me that the Pollution Board concludes, as set forth above, the
Village’s decision “has support in the record.” Some evidence is not enough evidence to approve
the pending conditional application. This is not a correct approach for the Pollution Board.
¶ 114 Second, after evaluating the evidence and drawing the hearing officer’s own conclusions
about credibility of the Village’s witnesses, the Village’s hearing officer recommended the
applicant failed to meet the necessary requirement for the conditional application to be approved
by the Village. The Village disagreed with the hearing officer’s conclusions. Not surprisingly,
the Village Board rejected the hearing officer’s recommendation to deny the application. The
Village justified the refusal to follow the recommendations of the hearing officer by finding their
own witnesses more credible than any other witness. In this case, the Pollution Board was
obligated to state its own reasoning concerning why the Village’s witnesses were credible and
the other witnesses were not. Further, the Pollution Board does not attempt to address or explain
why the Village hearing officer’s conclusions on competency and credibility were invalid and
against the manifest weight of the evidence submitted to the hearing officer.
¶ 115 Due to this omission, the appellant has specifically requested this court to conduct a
detailed analysis that includes a discussion of the differences between credibility and
competency. I observe that credibility is a familiar legal concept describing the perceived
truthfulness of a person testifying from the witness stand. See Morgan v. Department of
Financial & Professional Regulation, 374 Ill. App. 3d 275, 288-89 (2007). On the other hand,
competency is another equally familiar legal concept describing the ability of a witness to
comprehend and truthfully discuss prior events. See City of Chicago v. Bank of Ravenswood, 93
Ill. App. 3d 52, 55 (1981).
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¶ 116 Yet, “competency,” as applied to a siting decision rendered by the Pollution Board, takes
on a different meaning in my view. In the context of a siting decision, I believe the term
“competency” describes the accuracy, reliability, or truthfulness of technical information
contained in the record. Just as an incompetent witness should not be allowed to testify in a
proceeding before the circuit court, incompetent evidence should not be considered by the
Pollution Board in an administrative context. In my opinion, both credibility determinations of
the witnesses and competency determinations of the information must be included and recited in
the Pollution Board’s independent determinations of fact.
¶ 117 However, due to the rubber-stamping rationale of the Pollution Board, the Pollution
Board’s independent credibility and competency determinations are simply not present in this
record. Here, for reasons that are not apparent to me, the Pollution Board did not honor the
bifurcated approval process. Instead, the Pollution Board took a shortcut by regurgitating the
findings set forth in the Village Board’s resolution. The Pollution Board did not conduct an in-
depth analysis or closely examine whether the applicant’s evidence was based on correct
calculations of waste generated and the waste disposal capacity of the entire service area.
¶ 118 Simply stated, the Pollution Board failed to do its job in the case now before this court.
Without independent, factually supported findings and determinations from the Pollution
Board’s perspective of the cold hard evidence, this court has nothing to review. For these
reasons, I conclude the Pollution Board’s rubber-stamping rationale resulting in conditional
siting approval of this application must be set aside. Respectfully, I would reverse the Pollution
Board’s ruling on this basis without considering the merits of the other issues, including the
insufficiency of the purported intentional and underestimated misinformation contained in the
statutory notice.
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¶ 119 For the reasons set forth above, I respectfully dissent from the modified opinion. I agree
the request for reconsideration should be denied, after issuing the modified order, because the
applicant has not raised any additional issues that were not originally addressed by the parties in
the briefs or at oral arguments considered by this court.
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