Turlek v. Pollution Control Bd.

• Decision Date: 26 July 1995
• Docket Number: No. 1-94-2829,1-94-2829
• Citation: 653 N.E.2d 1288,210 Ill.Dec. 826,274 Ill.App.3d 244
• Parties: , 210 Ill.Dec. 826 Michael TURLEK et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD, et al., Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 1288

653 N.E.2d 1288

274 Ill.App.3d 244, 210 Ill.Dec. 826

Michael TURLEK et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD, et al., Respondents-Appellees.

No. 1-94-2829.

Appellate Court of Illinois,

First District, Third Division.

July 26, 1995.

Chicago Legal Clinic, Inc., Chicago, Keith I. Harley, for Turlek, Smejkal and Lathrop.

Stefan A. Noe, Chicago, for Citizens for a Better Environment.

Sonnenschein, Nath & Rosenthal, Chicago, Elpidio Villarreal, David C. Layden, for Bartleman, Katz and Schmits.

Presiding Justice GREIMAN delivered the opinion of the court:

Petitioners filed petitions with the Illinois Pollution Control Board (the Board) challenging the Village of Summit's (Summit) December 6, 1993 decision granting local siting approval to West Suburban Recycling Center, Inc. (WSREC) to construct an incinerator in Summit, Illinois. In an opinion and order dated May 5, 1994, the Board affirmed Summit's approval of WSREC's siting application, and denied petitioners' motions to reconsider.

On appeal, petitioners raise issues as to whether the Board erred in determining: (1) Summit had jurisdiction to consider WSREC's 1993 application; (2) the proposed incinerator was necessary to serve the intended area's waste disposal needs; (3) the proposed incinerator satisfied the Environmental Protection Agency's (EPA) flood-proofing criterion; and (4) the proper legal standard was applied in denying petitioners' motions for reconsideration. We affirm the Board's decision.

WSREC filed an application with Summit seeking siting approval for a municipal waste-to-energy facility. After public hearings, Summit granted WSREC siting approval on October 19, 1992. On February 25, 1993, the Board reversed Summit's approval citing Summit's failure to make WSREC's application available to the public.

The Board remanded the siting process to Summit with instructions that WSREC could reinstitute its application without further amendment within 35 days. On March 26, 1993, WSREC appealed the Board's order to this court and filed with the Board a motion to stay its order pending this court's ruling. The Board denied WSREC's motion to stay on April 8, 1993.

On June 8, 1993, WSREC mailed legal notices to property owners in the Summit area indicating its intent to file a new application with Summit for a larger, but substantially similar, facility located on the same property. WSREC published this notice on June 10, 1993.

On June 14, 1993, this court dismissed WSREC's appeal of the Board's February 1993 order for lack of jurisdiction, the order not being final. On June 25, 1993, WSREC filed its new application, for the larger facility, with Summit. Public hearings were held on September 28 and 29, 1993, after which Summit approved WSREC's application on December 6, 1993.

On January 7 and 10, 1994, petitioners filed separate petitions for review of Summit's decision with the Board. A hearing on the consolidated petitions was held on March 1, 1994, and the Board affirmed Summit's decision granting WSREC siting approval on May 5, 1994. On June 7 and 9, 1994, petitioners filed separate motions for reconsideration of the Board's May 5th order, which were denied on July 21, 1994. Petitioners appealed the Board's order to this court on August 25, 1994.

Petitioners first argue that Summit lacked jurisdiction to entertain WSREC's 1993 application. Summit's authority to consider a siting request for a regional pollution control facility is governed exclusively under 415 ILCS 5/39.2. Section 39.2 prohibits an applicant from filing a request for siting approval which is substantially the same as a request which was disapproved pursuant to a finding against the applicant under one of nine statutory criteria ¹ within the preceding two years. (415 ILCS 5/39.2(m) (West 1992.)). Petitioners argue that WSREC filed its 1993 request while its "substantially similar" 1992 request was still "pending" in violation of section 39.2, thereby preventing Summit from considering the second, 1993 application.

WSREC's 1992 application was approved, not disapproved, by Summit. The prohibition upon which petitioners rely relates to subsequent applications following a disapproved application. The Board reversed Summit's approval because the Village violated the procedural requirement of adequate public notice. Even assuming that Summit had denied WSREC's 1992 application on the basis of inadequate public notice, the quality of public notice is not one of the nine substantive criteria contained in subsection (a) of section 39.2 which preclude consideration of a second application.

Petitioners cite Laidlaw Waste Systems v. Pollution Control Bd. (1992), 230 Ill.App.3d 132, 172 Ill.Dec. 239, 595 N.E.2d 600, as additional support to their jurisdictional challenge. In Laidlaw, a waste company filed a second application within two years of a substantially similar application rejected by Madison County "for the reason that the applicant had failed to satisfy several of the criteria contained in subsection (a) of Section 39.2." (Laidlaw Waste Systems, 230 Ill.App.3d at 133, 172 Ill.Dec. 239, 595 N.E.2d 600.) Thus, while petitioners are correct in noting that Laidlaw and section 39.2(m) prohibit a refiling within two years following disapproval of a substantially similar application, these are not the facts before this court. WSREC's 1992 application was approved, and reversed by the Board on grounds unrelated to those contained in section 39.2(a). There is additional doubt as to whether the two applications are "substantially similar" since WSREC's first application proposed a facility capable of disposing 1000 tons of waste per day, while its subsequent proposal envisioned an 1,800 ton per day facility.

Petitioners advance the further argument that section 39.2, when read in conjunction with sections 40.1 and 41(a), does not provide a basis for local authorities to have jurisdiction over two pending applications for the same site from the same applicant. A literal reading of these sections, consistent with our obligation to give statutory language its plain and ordinary meaning (Laidlaw Waste Systems, 230 Ill.App.3d at 135, 172 Ill.Dec. 239, 595 N.E.2d 600), reveals no prohibition against an applicant having two concurrent applications. In fact, the recent Board decision in Daly v. Village of Robbins (July 1, 1993), PCB Nos. 93-52 and 93-54 (consolidated), 1993 Ill.ENV. LEXIS 636, aff'd on other grds., Daly v. Pollution Control Bd. (1994), 264 Ill.App.3d 968, 202 Ill.Dec. 417, 637 N.E.2d 1153, appeal den'd 158 Ill.2d 550, 206 Ill.Dec. 835, 645 N.E.2d 1357, where the Board affirmed a Village's decision granting a second siting request while the applicant's first request was still pending, indicates that the Board does not find the practice objectionable.

We decline to recognize an additional jurisdictional requirement where one was not provided by the controlling legislation. (See 415 ILCS 5/39.2(a-e), listing the factors necessary to initiate the siting approval process, e.g., providing notice of the request, filing the request with the local governing body, receiving written comment and developing a record of the proceeding.) Accordingly, we hold that Summit had jurisdiction to consider and approve WSREC's 1993 application.

Petitioners next argue the Board erred in finding that the proposed facility was necessary. On review, we are to determine whether the Board's decision is against the manifest weight of the evidence. (Daly v. Pollution Control Bd. (1994), 264 Ill.App.3d 968, 202 Ill.Dec. 417, 637 N.E.2d 1153.) That a different conclusion may be reasonable is insufficient; the opposite conclusion must be clearly evident, plain or indisputable. Wabash & Lawrence Counties Taxpayers & Water Drinkers Ass'n v. Pollution Control Bd. (1990), 198 Ill.App.3d 388, 392, 144 Ill.Dec. 562, 555 N.E.2d 1081.

Petitioners attack the Board's decision arguing: (1) Summit's failure to include in the hearing record two reports it relied upon prevented the Board from performing a meaningful review; (2) the data and reports Summit relied upon were outdated and inaccurate; (3) Summit failed to consider the effect of alternative waste disposal means; and (4) Summit failed to consider the effect of the Illinois Retail Rate Law. 220 ILCS 5/8-403.1.

In preparing and submitting the record of the proceedings, Summit failed to include two of the five reports it claimed supported its finding of necessity. Petitioners contend this omission "tainted" the Board's decision, although in rendering its decision the Board found "that there was sufficient support in the record for the Village to reach its decision exclusive of these two studies."

The missing reports did not contain evidence suggesting that the proposed incinerator was unnecessary, and were largely duplicative of the reports before the Board. It seems, then, that petitioners are protesting the fact the Board did not consider additional or cumulative evidence supporting a finding of necessity. Petitioners cite Clutts v. Beasley (1989), 185 Ill.App.3d 543, 545, 133 Ill.Dec. 633, 541 N.E.2d 844, as a case which "emphasizes the importance of a complete record." Clutts does not hold that the record before the Board must be identical to that considered by the Village. Rather, the court held that "so long as the decision is in writing, and a record has been made showing the basis for the decision, neither a detailed statement finding specific facts, nor a detailed explanation of the relationship between the facts, criteria, and the conclusions is necessary ..." (Clutts, 185 Ill.App.3d at 545, 133 Ill.Dec. 633, 541 N.E.2d 844.) (Emphasis added.) The court found further that the purpose of these criteria was to impose standards, so that the decision of the Board to approve or deny operation of a proposed facility "is made with guidance, rather than arbitrarily or by whim." (Clutts, 185 Ill.App.3d at 545, ...