Will County v. Village of Rockdale

2018 IL App (3d) 160463

Opinion

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

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)

38 ¶ 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.

39 ¶ 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).

40 ¶ 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.

41 ¶ 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.