{ "id": 291522, "name": "MICHAEL TURLEK et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees", "name_abbreviation": "Turlek v. Pollution Control Board", "decision_date": "1995-07-26", "docket_number": "No. 1\u201494\u20142829", "first_page": "244", "last_page": "252", "citations": [ { "type": "official", "cite": "274 Ill. App. 3d 244" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "572 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "213 Ill. App. 3d 622", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5209695 ], "weight": 3, "pin_cites": [ { "page": "133" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0132-01" ] } ], "analysis": { "cardinality": 813, "char_count": 18234, "ocr_confidence": 0.748, "pagerank": { "raw": 8.639787344315409e-08, "percentile": 0.4911023770111694 }, "sha256": "c44454478d700dce2a58702a6a9104856ec0d90f0257e64cd8911f66a028030a", "simhash": "1:1b9dc0dd3f01a644", "word_count": 2812 }, "last_updated": "2023-07-14T20:31:30.839378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL TURLEK et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE GREIMAN\ndelivered the opinion of the court:\nPetitioners filed petitions with the Illinois Pollution Control Board (the Board) challenging the Village of Summit\u2019s (Summit\u2019s) 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\u2019s approval of WSREC\u2019s siting application and denied petitioners\u2019 motions to reconsider.\nOn appeal, petitioners raise issues as to whether the Board erred in determining: (1) Summit had jurisdiction to consider WSREC\u2019s 1993 application; (2) the proposed incinerator was necessary to serve the intended area\u2019s waste disposal needs; (3) the proposed incinerator satisfied the Environmental Protection Agency\u2019s (EPA\u2019s) flood-proofing criterion; and (4) the proper legal standard was applied in denying petitioners\u2019 motions for reconsideration. We affirm the Board\u2019s decision.\nWSREC 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\u2019s approval, citing Summit\u2019s failure to make WSREC\u2019s application available to the public.\nThe 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\u2019s order to this court and filed with the Board a motion to stay its order pending this court\u2019s ruling. The Board denied WSREC\u2019s motion to stay on April 8, 1993.\nOn 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.\nOn June 14, 1993, this court dismissed WSREC\u2019s appeal of the Board\u2019s 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\u2019s application on December 6, 1993.\nOn January 7 and 10, 1994, petitioners filed separate petitions for review of Summit\u2019s decision with the Board. A hearing on the consolidated petitions was held on March 1, 1994, and the Board affirmed Summit\u2019s decision granting WSREC siting approval on May 5, 1994. On June 7 and 9, 1994, petitioners filed separate motions for reconsideration of the Board\u2019s May 5 order, which were denied on July 21, 1994. Petitioners appealed the Board\u2019s order to this court on August 25, 1994.\nPetitioners first argue that Summit lacked jurisdiction to entertain WSREC\u2019s 1993 application. Summit\u2019s authority to consider a siting request for a regional pollution control facility is governed exclusively under section 39.2 of the Environmental Protection Act (415 ILCS 5/39.2 (West 1992)). 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 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\u201d 1992 request was still \"pending\u201d in violation of section 39.2, thereby preventing Summit from considering the second, 1993 application.\nWSREC\u2019s 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\u2019s approval because the village violated the procedural requirement of adequate public notice. Even assuming that Summit had denied WSREC\u2019s 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.\nPetitioners cite Laidlaw Waste Systems (Madison), Inc. v. Pollution Control Board (1992), 230 Ill. App. 3d 132,595 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.\u201d (Laidlaw Waste Systems, 230 Ill. App. 3d at 133.) 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\u2019s 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\u201d since WSREC\u2019s first application proposed a facility capable of disposing 1,000 tons of waste per day, while its subsequent proposal envisioned an 1,800-ton-per-day facility.\nPetitioners 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), 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), Ill. PCB Nos. 93\u201452, 93\u201454 (consolidated), aff'd on other grounds Daly v. Pollution Control Board (1994), 264 Ill. App. 3d 968, 637 N.E.2d 1153, appeal denied (1994), 158 Ill. 2d 568, where the Board affirmed a village\u2019s decision granting a second siting request while the applicant\u2019s first request was still pending, indicates that the Board does not find the practice objectionable.\nWe decline to recognize an additional jurisdictional requirement where one was not provided by the controlling legislation. (See 415 ILCS 5/39.2(a) through (e) (West 1992) (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\u2019s 1993 application.\nPetitioners next argue the Board erred in finding that the proposed facility was necessary. On review, we are to determine whether the Board\u2019s decision is against the manifest weight of the evidence. (Daly v. Pollution Control Board (1994), 264 Ill. App. 3d 968, 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 Association v. Pollution Control Board (1990), 198 Ill. App. 3d 388, 392, 555 N.E.2d 1081.\nPetitioners attack the Board\u2019s decision, arguing: (1) Summit\u2019s 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 Public Utilities Act (220 ILCS 5/8^03.1 (West 1992)).\nIn 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 \u201ctainted\u201d the Board\u2019s 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.\u201d\nThe 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, 541 N.E.2d 844, as a case which \"emphasizes the importance of a complete record.\u201d 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, the criteria, and the conclusions is necessary.\u201d (Emphasis added.) (Clutts, 185 Ill. App. 3d at 545.) 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.\u201d (Clutts, 185 Ill. App. 3d at 545.) Since the omission of two largely cumulative reports, relied on to support Summit\u2019s finding of necessity, does not suggest the Board\u2019s decision was arbitrary, petitioners\u2019 argument is unpersuasive.\nPetitioners next argue that the 1991 Northeastern Illinois Planning Commission (NIPC) report relied upon by Summit failed to provide an accurate picture of the area\u2019s present waste needs. The 1991 NIPC report forecasted the remaining life of 24 Illinois landfills to be 5.8 years. Petitioners assert Summit should have relied on the 1993 NIPC report, which surveyed the same landfills and predicted a life-span of 5.9 years. We reject the implication that a discrepancy in the stated life-span of approximately 30 days somehow impugns the Board\u2019s decision.\nPetitioners argue relatedly that Summit\u2019s failure to consider the impact of source reduction, recycling, and composting as alternative waste disposal means made the finding of necessity contrary to the weight of evidence. The record indicates that two environmental experts, one being WSREC\u2019s president, testified to the relationship between incineration and recycling and composting. Though, arguably, additional information on alternative methods of waste disposal should have been considered, petitioners did not present such information before Summit, and cannot argue now that Summit failed to adequately consider their impact. Further, Summit\u2019s written decision found that the facility was necessary even if there was an increase in recycling and composting of municipal waste. Accordingly, we believe that the record does not allow for the conclusion that Summit or the Board relied upon improper, dated or inaccurate evidence.\nPetitioners\u2019 last challenge to the Board\u2019s necessity determination involves the Public Utilities Act. (220 ILCS 5/8 \u2014 403.1 (West 1992).) This statute requires electric utilities to enter into long-term contracts for the purchase of electricity from qualified solid waste energy centers (WSREC), thus allowing such centers to realize a consistent profit. Absent the revenues guaranteed by the Public Utilities Act, petitioners contend the WSREC incinerator would not be profitable, and, therefore, there is no need for it to exist. \"Necessary\u201d under the statute has been found to mean \"expedient,\u201d as well as \"reasonably convenient\u201d or \"reasonably required by the waste needs of the area.\u201d (Waste Management of Illinois, Inc. v. Pollution Control Board (1992), 234 Ill. App. 3d 65, 69, 600 N.E.2d 55.) Petitioners cite no authority finding that necessity determinations are predicated on consideration of market forces, unaltered by governmental incentives or controls. In fact, there is no requirement that absolute necessity be shown, nor has profitability been held indispensable to a finding of necessity. Thus, while petitioners\u2019 market analysis is interesting, it certainly does not suggest that the Board\u2019s decision is contrary to the manifest weight of the evidence.\nPetitioners next contend the Board erred because a portion of the proposed facility is located within the 100-year flood plain and WSREC failed to demonstrate that the site was flood-proofed. Section 39.2(a) states that \"local siting approval shall be granted only if the proposed facility meets the following criteria: *** (iv) the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed.\u201d (415 ILCS 5/39.2 (a)(iv) (West 1992).) Summit\u2019s ordinance granting siting approval states that the WSREC facility \"is designed to be flood-proofed.\u201d Summit based this determination on evidence in the record, including WSREC\u2019s submission of a storm water management plan that includes detention storage requirements, sewer design, soil erosion control, and construction plans establishing building elevations above the flood plain, which indicates that the site was capable of being flood-proofed. The Board found Summit\u2019s determination that the site is \"designed\u201d to be flood-proofed not against the manifest weight of the evidence. In reaching this decision, the Board relied on its earlier decision in Daly v. Village of Robbins (July 1, 1993), Ill. PCB Nos. 93\u201452, 93\u2014 54, which was subsequently upheld in this court. Daly v. Pollution Control Board, 264 Ill. App. 3d 968, 637 N.E.2d 1153.\nDaly resolved the identical issue now raised by petitioners, holding that: \"[t]here would be little point in taking detailed evidence on flood-proofing and specifically finding that the design meets flood-proofing requirements if the village did not intend it as a precondition. So we believe that by including the flood-proofing provision in the ordinance, the village board recognized that a condition precedent for site suitability is that the facility be flood-proofed.\u201d (Daly, 264 Ill. App. 3d at 974.) Section 39.2(a)(iv) is satisfied where the local authorities determine that a proposed facility is designed flood-proofed, and flood-proofing is a recognized precondition of ultimate site suitability.\nPetitioners\u2019 final argument alleges the Board applied the incorrect standard in denying petitioners\u2019 motions to reconsider. Section 101.246(d) of the Administrative Code defines the scope of matters the Board must consider in ruling on motions to reconsider: \"In ruling upon a motion under this Section, the Board will consider factors including, but not limited to, error in the decision and facts in the record which are overlooked.\u201d (35 Ill. Adm. Code \u00a7 101.246(d) (1994).) Petitioners claim that the Board improperly limited its review to \"newly discovered evidence which was not available at the time of hearing, changes in the law or errors in the court\u2019s previous application of the existing law.\u201d (Korogluyan v. Chicago Title & Trust Co. (1992), 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154.) However, the Board\u2019s order denying petitioners\u2019 motions to reconsider reads: \"Neither motion for reconsideration presents the Board with new evidence, a change in the law, or any other reason to conclude that the Board\u2019s May 5, 1994 decision was in error.\u201d (Emphasis added.) As the Board\u2019s order makes clear, it applied the correct standard of review in ruling to deny petitioners\u2019 motions.\nFor the reasons set forth above, we affirm the Board\u2019s orders affirming the Village of Summit\u2019s decision granting WSREC siting approval and denying petitioners\u2019 motions for reconsideration.\nAffirmed.\nRIZZI and CERDA, JJ., concur.\nSection 39.2(a) states, in pertinent part:\n\"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:\n(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;\n(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;\n(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;\n(iv) the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed;\n(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;\n(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows;\n(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release;\n(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; and\n(ix) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met.\u201d 415 ILCS 5/39.2(a) (West 1992).", "type": "majority", "author": "PRESIDING JUSTICE GREIMAN" } ], "attorneys": [ "Keith I. Harley, of Chicago Legal Clinic, Inc., of Chicago, for petitioners Michael Turlek, Lillian Smejkal, and John Lathrop.", "Stefan A. Noe, of Chicago, for petitioner Citizens for a Better Environment.", "Elpidio Villarreal and David C. Layden, both of Sonnenschein, Nath & Rosenthal, of Chicago, for petitioners Patricia J. Bartleman, Nanci Katz, and Michelle Schmits.", "Robert M. Olian and Mark Chutkow, both of Sidley & Austin, of Chicago, for respondent West Suburban Recycling and Energy Center, Inc." ], "corrections": "", "head_matter": "MICHAEL TURLEK et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.\nFirst District (3rd Division)\nNo. 1\u201494\u20142829\nOpinion filed July 26, 1995.\nKeith I. Harley, of Chicago Legal Clinic, Inc., of Chicago, for petitioners Michael Turlek, Lillian Smejkal, and John Lathrop.\nStefan A. Noe, of Chicago, for petitioner Citizens for a Better Environment.\nElpidio Villarreal and David C. Layden, both of Sonnenschein, Nath & Rosenthal, of Chicago, for petitioners Patricia J. Bartleman, Nanci Katz, and Michelle Schmits.\nRobert M. Olian and Mark Chutkow, both of Sidley & Austin, of Chicago, for respondent West Suburban Recycling and Energy Center, Inc." }, "file_name": "0244-01", "first_page_order": 262, "last_page_order": 270 }