Waste Management of Illinois, Inc. v. Illinois Pollution Control Bd., No. 1-89-2541

CourtUnited States Appellate Court of Illinois
Writing for the CourtLaPORTA
Citation558 N.E.2d 1295,201 Ill.App.3d 614
Parties, 146 Ill.Dec. 961 WASTE MANAGEMENT OF ILLINOIS, INC., a Delaware corporation, Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD and Village of Bensenville, a municipal corporation, Respondents.
Decision Date20 July 1990
Docket NumberNo. 1-89-2541

Page 1295

558 N.E.2d 1295
201 Ill.App.3d 614, 146 Ill.Dec. 961
WASTE MANAGEMENT OF ILLINOIS, INC., a Delaware corporation, Petitioner,
v.
ILLINOIS POLLUTION CONTROL BOARD and Village of Bensenville,
a municipal corporation, Respondents.
No. 1-89-2541.
Appellate Court of Illinois,
First District, Sixth Division.
July 20, 1990.

Rehearing Denied Sept. 19, 1990.

Page 1296

[201 Ill.App.3d 616] [146 Ill.Dec. 962] Pederson & Houpt, Chicago (Donald J. Moran, Marilee Roberg, of counsel), for petitioner.

Neil F. Hartigan, Atty. Gen., Chicago, (Michelle D. Jordan, Matthew J. Dunn, Patricia E. Collins, of counsel), for respondents.

Presiding Justice LaPORTA delivered the opinion of the court:

Petitioner, Waste Management of Illinois, Inc. (Waste Management), sought local site approval from the Village of Bensenville (Village) for construction of a solid waste transfer station pursuant to section 39.2 of the Environmental Protection Act (Act) (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039.2). Following an evidentiary hearing, the Village denied the request for site approval, and Waste Management appealed the Village's decision to the Illinois Pollution Control Board (PCB). Ill.Rev.Stat.1987, ch. 111 1/2, par. 1040.1.

On review, the PCB upheld the Village's denial of site approval for the waste transfer station. Following the PCB's denial of its motion to reconsider, Waste Management filed its petition for review with this court. Ill.Rev.Stat.1987, ch. 111 1/2, par. 1041.

The record reveals that on July 22, 1988, Waste Management filed with the Village a proposal for construction of a solid waste transfer station on approximately seven acres of property located immediately east of Waste Management's Garden City disposal plant, a waste hauling company, in the Village of Bensenville. The transfer station was designed to receive, compact,

Page 1297

[146 Ill.Dec. 963] and transfer to sanitary landfills non-hazardous and non-special refuse. Its purpose was to make waste hauling in the service area more efficient and cost effective. The facility was also to be used as a processing center for recycling aluminum, paper, glass, wood skids, and cardboard. The transfer station operations, including unloading, compacting, and loading were to be completely enclosed, minimizing or eliminating noise, odors, dirt, and litter.

On November 10, 1988, the Village held a hearing on the proposal for the waste transfer station. In addition to the members of the village[201 Ill.App.3d 617] board, counsel for Waste Management and for the Village were present. At the hearing, Waste Management presented seven witnesses who testified in support of the application. No testimony or other evidence was presented in opposition to the proposal.

The evidence offered by Waste Management to establish the necessity for the waste transfer station consisted of the testimony of Edward Evenhouse, general manager of the Garden City disposal plant (Garden City). Evenhouse testified that the waste transfer station was necessary due to three factors: (1) the scarcity of available landfill space in the vicinity of the service area; (2) the imposition of a quota system by the nearest available landfill; and (3) the then-present inefficiencies of transporting waste from the service area to existing disposal sites.

On cross-examination Evenhouse stated that Garden City did not service all of the waste needs in the area, but he was unable to testify as to the percentage of waste Garden City did handle within the service area. He also acknowledged that the application for site location approval did not include an economic analysis of the proposal.

Evenhouse testified further that the waste collected by Garden City was taken to various landfills and waste transfer stations including those located at Hooker Street in Chicago, Lake landfill in Northbrook, the Groot transfer station, Congress Development landfill, Mallard Lake, and Woodland and Settlers Hills. Evenhouse was unable to testify as to the amount of waste that was being transported to the Lake landfill, but acknowledged that Lake landfill had obtained a three-year extension of its operations. He could not state the projected life of the Congress Development landfill, and although he testified that this facility had imposed quotas limiting the amount of waste it would accept from Garden City, Evenhouse did not know the maximum number of loads it would accept. He also stated that his information regarding the projected closing of the Mallard Lake landfill in 1993 was derived from newspaper articles and that the Mallard Lake landfill had never refused to accept waste from Garden City.

Evenhouse also testified that the Mallard Lake landfill was about eight miles from Garden City and that the Congress Development facility was about four miles away. Evenhouse indicated that these were reasonable distances to drive a collection truck to unload. He testified that he hoped the construction of the transfer station would improve the efficiency of Garden City's operations by allowing for the elimination of some of its collection trucks, and he stressed the importance of recycling waste. Evenhouse stated that the proposed transfer station was designed to accommodate a maximum of 12 loads per day, but acknowledged[201 Ill.App.3d 618] that the application for site approval did not limit Garden City to 12 loads per day. He also indicated that Garden City could initiate recycling operations on this site without obtaining approval from the Village.

On February 2, 1989, the Village denied the application for site approval, finding that Waste Management had not established that the waste transfer station was necessary or that the impact on existing traffic flow would be minimal. (Ill.Rev.Stat.1987, ch. 111 1/2, pars. 1039.2(a)(i), (vi).) On February 8, 1989, Waste Management filed its petition for review with the PCB. (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1040.1(a).) On June 21, 1989, at the PCB's request, Waste Management waived the statutory deadline of June 22, 1989, and agreed to a continued decision date of June 29, 1989.

Page 1298

[146 Ill.Dec. 964] On June 27, 1989, Waste Management, at the request of the PCB, again waived the statutory deadline and the decision date was continued to July 13, 1989.

On July 13, 1989, the PCB issued an order affirming the denial by the Village of the application for local site approval for the waste transfer station. The order did not set forth the reasons for the PCB's decision, but stated that an opinion in support of the order would be issued on August 10, 1989. The July 13, 1989 order also provided that the time period within which the PCB would entertain any motions for reconsideration would commence with the issuance of its August 10, 1989 opinion.

In the opinion issued August 10, 1989, the PCB upheld the Village's determination on the question of the necessity of the waste transfer station, but found that the Village's decision regarding traffic flow was against the manifest weight of the evidence. The PCB affirmed the Village's denial of site approval on the basis that Waste Management had not established that the transfer station was necessary to accommodate the waste needs of the area it was intended to serve.

Waste Management filed a motion for reconsideration with the PCB, asserting that the PCB had not taken final action within 120 days as required by statute (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1040.1) and that the PCB had erred in affirming the Village's determination regarding the necessity of the transfer station (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1039.2(a)(i)). Upon the denial of its motion for reconsideration, Waste Management filed the instant petition for review with this court.

We initially consider whether Waste Management's application for site location of the waste transfer station should be deemed approved due to the failure of the PCB to issue its opinion within 120 days.

[201 Ill.App.3d 619] In this case, the PCB was required to take final action on Waste Management's petition by July 13, 1989, in compliance with section 40.1 of the Act (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1040.1). Waste Management contends that the July 13, 1989, order did not constitute final action, and consequently, its application should be deemed approved by operation of law. The Village and the PCB assert that although the order of July 13, 1989, did not contain the explanation of the decision, it was a final determination affirming the Village's denial of site location approval. We find this argument unpersuasive.

Section 40.1(a) of the Act outlines the procedure for appeal to the PCB from a denial of local site approval and provides that if there is no final action by the PCB within 120 days, the petitioner may deem the site location approved. (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1040.1(a).) Section 33(a) of the Act requires the PCB to file and publish a written opinion stating the facts and reasons leading to its decision. (Ill.Rev.Stat.1987, ch. 111 1/2, par. 1033(a); Wells Manufacturing Co. v. Pollution Control Board (1978), 73 Ill.2d 226, 233-34, 22 Ill.Dec. 672, 675, 383 N.E.2d 148, 151; Mystik Tape v. Pollution Control Board (1975), 60 Ill.2d 330, 336, 328 N.E.2d 5, 8; Clean Air Coordinating Committee v. Environmental Protection Agency (1976), 42 Ill.App.3d 124, 128, 355 N.E.2d 573, 576.) We believe that these two sections of the Act must be considered together when determining the deadline for final action by the PCB. (See generally Clean Air Coordinating Committee, 42 Ill.App.3d at 127, 355 N.E.2d at 576; Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill.App.3d 1023, 1035, 125 Ill.Dec. 524, 534, 530 N.E.2d 682, 692.) When read together, these two sections indicate that the PCB must issue its final determination within 120 days and that the final determination must include the reasons leading to its decision.

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  • Waste Management of Illinois, Inc. v. Illinois Pollution Control Bd., Docket Nos. 71001
    • United States
    • Supreme Court of Illinois
    • November 21, 1991
    ..."final action" within the statutory time period. The appellate court, with one justice dissenting, reversed the Board's decision. (201 Ill.App.3d 614, 146 Ill.Dec. 961, 558 N.E.2d 1295.) The appellate court held that the August 10, 1989, opinion constituted the final determination by the Bo......
  • Citizens Utility Bd. v. Illinois Commerce Com'n, Nos. 1-94-2270
    • United States
    • United States Appellate Court of Illinois
    • November 9, 1995
    ...135 Ill.App.3d 294, 297-98, 90 Ill.Dec. 388, 482 N.E.2d 95; Waste Management of Illinois, Inc. v. Pollution Control Board (1990), 201 Ill.App.3d 614, 621, 146 Ill.Dec. 961, 558 N.E.2d 1295, rev'd on other grounds (1991), 145 Ill.2d 345, 165 Ill.Dec. 875, 585 N.E.2d 606.) Thus, the Commissio......
  • Miller v. Pollution Control Bd., Nos. 4-93-0047
    • United States
    • United States Appellate Court of Illinois
    • October 27, 1994
    ...This principle applies to decisions of administrative agencies. Waste Management of Illinois, Inc. v. Pollution Control Board (1990), 201 Ill.App.3d 614, 619, 146 Ill.Dec. 961, 964, 558 N.E.2d 1295, 1298, rev'd on other grounds (1991), 145 Ill.2d 345, 165 Ill.Dec. 875, 585 N.E.2d 606. An or......
  • Waste Management of Illinois, Inc. v. Pollution Control Bd., No. 1-89-2541
    • United States
    • United States Appellate Court of Illinois
    • August 28, 1992
    ...mandated by the statute. (Waste Management of Illinois, Inc. v. Illinois Page 56 [175 Ill.Dec. 433] Pollution Control Board (1990), 201 Ill.App.3d 614, 146 Ill.Dec. 961, 558 N.E.2d 1295.) The PCB appealed that decision to the Illinois Supreme Court, which reversed, holding that Waste Manage......
  • Request a trial to view additional results
5 cases
  • Waste Management of Illinois, Inc. v. Illinois Pollution Control Bd., Docket Nos. 71001
    • United States
    • Supreme Court of Illinois
    • November 21, 1991
    ..."final action" within the statutory time period. The appellate court, with one justice dissenting, reversed the Board's decision. (201 Ill.App.3d 614, 146 Ill.Dec. 961, 558 N.E.2d 1295.) The appellate court held that the August 10, 1989, opinion constituted the final determination by the Bo......
  • Citizens Utility Bd. v. Illinois Commerce Com'n, Nos. 1-94-2270
    • United States
    • United States Appellate Court of Illinois
    • November 9, 1995
    ...135 Ill.App.3d 294, 297-98, 90 Ill.Dec. 388, 482 N.E.2d 95; Waste Management of Illinois, Inc. v. Pollution Control Board (1990), 201 Ill.App.3d 614, 621, 146 Ill.Dec. 961, 558 N.E.2d 1295, rev'd on other grounds (1991), 145 Ill.2d 345, 165 Ill.Dec. 875, 585 N.E.2d 606.) Thus, the Commissio......
  • Miller v. Pollution Control Bd., Nos. 4-93-0047
    • United States
    • United States Appellate Court of Illinois
    • October 27, 1994
    ...This principle applies to decisions of administrative agencies. Waste Management of Illinois, Inc. v. Pollution Control Board (1990), 201 Ill.App.3d 614, 619, 146 Ill.Dec. 961, 964, 558 N.E.2d 1295, 1298, rev'd on other grounds (1991), 145 Ill.2d 345, 165 Ill.Dec. 875, 585 N.E.2d 606. An or......
  • Waste Management of Illinois, Inc. v. Pollution Control Bd., No. 1-89-2541
    • United States
    • United States Appellate Court of Illinois
    • August 28, 1992
    ...mandated by the statute. (Waste Management of Illinois, Inc. v. Illinois Page 56 [175 Ill.Dec. 433] Pollution Control Board (1990), 201 Ill.App.3d 614, 146 Ill.Dec. 961, 558 N.E.2d 1295.) The PCB appealed that decision to the Illinois Supreme Court, which reversed, holding that Waste Manage......
  • Request a trial to view additional results

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