Will County v. Village of Rockdale

2018 IL App (3d) 160463
No. 3-16-0496 (Consolidated)
Opinion filed July 5, 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 3-16-0469
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.
Justices Schmidt and Wright concurred in the judgment and 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 65feet, 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 Andy 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 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’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 ANALYSIS
¶ 32 I. Notice Requirements
¶ 33 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
15
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).
¶ 34 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:
“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
16
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).
¶ 35 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.
¶ 36 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.
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.
¶ 37 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
17
description of the proposed landfill alone provided interested persons with notice of the location
of the proposed facility.
¶ 38 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
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 solely rely 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.
¶ 39 II. Application Amendments
¶ 40 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
18
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.
¶ 41 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).” 415 ILCS 5/39.2(e) (West 2014).
¶ 42 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).
¶ 43 III. Conditions
¶ 44 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
19
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.
¶ 45 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).
¶ 46 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).
¶ 47 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
20
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.
¶ 48 IV. Section 39.2(a) Criteria
¶ 49 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)).
¶ 50 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,
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;
***
21
(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.
¶ 51 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)).
¶ 52 A. Criterion (i)
22
¶ 53 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).
¶ 54 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
the service area and two were limited in the amount and type of waste they received. For
instance, the Rockdale station took only recyclables, and the Citiwaste station took only clean
construction and demolition debris, landscape waste, and recyclables. The Joliet 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 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
23
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 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. Therefore, we
determine that the Pollution Board’s ruling that ERDS had met criterion (i) was not against the
manifest weight of the evidence.
¶ 55 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.
¶ 56 B. Criterion (ii)
¶ 57 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
24
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.
¶ 58 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.
¶ 59 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.
¶ 60 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.
¶ 61 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
25
peak water elevation level from detention pond 1 is, therefore, below the maximum elevation
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.
¶ 62 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.”
¶ 63 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.
¶ 64 C. Criterion (v)
26
¶ 65 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.”
¶ 66 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).
¶ 67 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.
¶ 68 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
27
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.
¶ 69 D. Criterion (viii)
¶ 70 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.
¶ 71 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.
¶ 72 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 with a
28
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.
¶ 73 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.
¶ 74 V. Sufficiency of the Application
¶ 75 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.
¶ 76 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).
¶ 77 CONCLUSION
¶ 78 The judgment of the Illinois Pollution Control Board is affirmed.
29
¶ 79 Affirmed.
30