ILLINOIS POLLUTION CONTROL BOARD
August
10, 1989
WASTE MANAGEMENT OF ILLINOIS,
INC.,
Petitioner,
v.
)
PCB 89—28
VILLAGE OF BENSENVILLE,
Respondent.
MR. DONALD
J. MORAN,
ESQ. APPEARED ON BEHALF OF THE PETITIONER;
AND
MR. LARRY M. CLARK, ESQ. APPEARED ON BEHALF OF THE RESPONDENT.
OPINION OF THE BOARD
(by J.D.
Dumelle):
This Opinion supports the Board Order entered July
13,
1989.
This matter comes before the Board on an appeal filed by
Waste Management,
Inc.
(WMI)
on February
8, 1989 pursuant to
Section 40.1 of the Environmental Protection Act (Act).*
WMI appeals
the February
2,
1989 decision of the Village of
Bensenville
(Village)
to deny a “SB172”
local siting approval
for
a transfer station at its Garden City Disposal division pursuant
to Section 39.2
of the Act.**
Hearing was held before the Board on April
12,
1989.
No
members of the public were present.
The Board hearing consisted
only of establishing
a briefing schedule and acceptance
of
Exhibit
1,
the original receipts of the certified mailings.
WMI
filed a
brief and reply brief on April
19, 1989 and May 22, 1989
respectively; the
Village filed
its brief
on May
8,
1989.
WMI filed
its S3172 application with the Village on July
22,
1988.
A hearing was held on November
10,
1988 at the Bensenville
City Hall.
Hearing testimony were the Hearing Officer,
a hearing
committee consisting of two Village Board members,
the Village
*
On March
9,
1989,
the Board
ruled
that the statutory time
period for Board decision began running on February
27,
1989,
the
date the filing fee was received from WMI.
**
The Board will continue here the ~‘shorthand” custom of
referring to these proceedings by the originally adopted bill
number, SB172
(P.A.
82—682,
eff. Nov.
12,
1981).
102—25
—2—
Manager and the Village Clerk.
No member of the public was
present; after hearing, written comment was filed, apparently by
the Village (Village Res. R_5_89).*
Seven witnesses testified on behalf of WMI.
There was no
testimony or evidence offered in opposition.
The witnesses were
cross—examined by the Village’s attorney.
The Village’s February
2,
1989 resolution denied WMI’s
request, finding that WMI failed to meet
its burden of proof on
Criterion No.1 and No.6 of the nine criteria in Section 39.2(a)
of the Act.
The resolution contained no other statements
in
explanation of the decision.
Jurisdictional Issue
At the end of
the Village hearing, the Village1s and WMI’s
attorneys
first argued the issue as
to whether Noonan Machine Co.
was given timely notice pursuant
to Section 39.2(b)
of the Act.
(R.203—206)
The issue was further argued in WMI’s Brief and
Reply Brief and the Village’s Brief.
Noonan Machine Company did
not object
to notice or otherwise participate
in the Village~s
proceedings or at the Board’s hearing.
The pertinent part of Section 39.2(b)
of the Act
reads as
follows:
No later
than
14
days
prior
to
a
request for
location
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
project,
said
owners
being
such
persons
or
entities
which
appear
from
the authentic
tax
records
of
the
County
in
which
such
facility
is
to
be
located.
In its Resolution,
the Village, prior
to making its findings
on the criteria,
recognized,
but made no decision on,
the
jurisdictional issue,
stating
in pertinent part that:
*
The comment,
included with, but not listed on, the Village’s
Certificate of Recordof Appeal,
consisted of an undated intra-
Village memo,
a letter from Garden City Disposal, and two of
three referenced pictures.
In any event,
the comment
is
not
germane to the issues
in this proceeding.
On June
16,
1989,
the
Village filed
a corrected certificate of record,
including the
comment as corrected and a correction of the Village’s vote in
its resolution.
102—2 6
—3—
“Said
notice
was
actually
made
on
July
11,
1988
by certified
mail.
(Eleven days before
the
filing
of
this
application).
WMI
also
attempted delivery
by personal
service on
or
about July
6,
1988.
This Board has
resolved
not
to
rule
on
the
jurisdictional
issue
as
they feel that the ruling on the criteria from
Section
39.2
of
the Environmental
Protection
Act will
be dispositive
of
this application.”
(Village Res. p.
2).
The facts are not at issue.
The application was filed on
July
22, 1988;
the 14-day deadline prior
to that filing would be
July 8,
1988.
On July 6,
1988, which was a normal business day,
a private
process server arrived at Noonan Machine Company
(“Noonan”)
and
found
a
sign on the front of Noonan announcing that the company
was closed for vacation until July 11,
1988,
so he left the
Notice under the front door.
He verified this by affidavit
signed July
8, 1988.
(Pet.
Ex.
10).
Also,
a certified mailing
was sent earlier by WMI
to Noonan,
on July 1,
1988,
21 days
before the filing of
the application.
However, the date of
delivery filled out by Noonan on the
return receipt of the
certified mailing was July 11,
1988
(Pet.
Ex.
9).
There was no disagreement that the 14 day notice requirement
of Section 39.2
is jurisdictional,
and is to be strictly
construed.
Rather,
the dispute
revolved around whether either
the July
1,
1988 certified mailing or the July 6,
1988 notice
delivery under Noonan’s front door,
(or both) constituted timely
14 day notice, or whether the July 11,
1988 date on the return
receipt constituted notice, which would mean notice was untimely.
The Village’s attorney argues first
that Noonan did not
receive personal service, citing the summons provisions of
Ill.
Rev.
Stat.
Ch. 110,
Sections 2—203 and 2—204 which states as
follows:
2—203:
Service
on
individuals.
(a).
.
.
.
service
of
a
summons upon
an individual
shall
be made
(1)
by
leaving
a
copy
thereof
with
the
defendant personally
or
(2)
by
leaving
a copy
at
the
defendants
usual
place
of
abode
with
some person of
the family,
of the age
13 years
or upwards
.
.
2—204:
Service
on
private
corporations.
A
private
corporation
may
be
served
(1)
by
leaving
a
102—27
—4—
copy with its registered
agent
or any officer
or
agent
of
the
corporation
found within
the
State;
or
(2)
in
any
other
manner
now
or
hereafter permitted by law.
While the Village attorney acknowledges that Noonan was not
being given a summons, he asserts that the intent of the Act
is
the same as the above noted sections,
that it
is a jurisdictional
requirement that must be strictly complied with, citing Kane
County Defenders
v. PCB,
139 Iii. App.3d 588,
487 N.E.2d 743,
(2d
Dist.
1985) and that the process server did not obtain either
individual or corporate service upon Noonan.
(Village Br.,
p.
3,4).
The Village attorney next disputes that WMI’s certified
mailing was valid under the Board’s City of Columbia opinion.
City of Columbia
v.
County of St. Clair,
PCB 85—177,
85—220 and
85—223
(consolidated),
p.
13, April
3,
1986.
He asserts that the
pertinent part of the Board’s Opinion stating that it would use
Section 103.123(b)
of its Procedural Rules, where there
is a
presumption of service four days after mailing of notice by
certified mail, was dicta.
He also argues that the Board’s
rationale was based on a concern that to hold otherwise would
allow opposing property owners to
refuse and frustrate service.
In this case, however,
there was no allegation that Noonan was
attempting to frustrate service, and that they
in fact received
notice, but not during the statutory time frame since the signed
receipt overcomes the presumption o~service four days after
delivery.
Finally, the Village attorney asserts WMI had notice from
the process server that service on Noonan may not be had until
July 11,
1988, and thus would be
late.
The Village attorney
argues that WMI should have resolved the problem by re—noticing
and re—publishing their intent
to
file.
WMI argues that the statutory provisions
in the Act and Ch.
110 are fundamentally different.
Service of summons under
Sections 2—203 and 2—204
is intended to be consonant with due
process for
a named defendant
involving a judgment of
liability,
whereas Section 39.2(b)
of
the Act
is intended to provide service
reasonably expected to apprise property owners of opportunity to
participate
in a siting proceeding where no corporate or
personal
liability exists.
WMI asserts that this Board has held that an
applicant need only initiate service
“sufficiently far
in advance
to reasonably expect receipt of notice 14 days
in advance of the
filing of
a notice”,
citing Phillips
v.
County of Wabash,
PCB 87—
122, December
3,
1987;
p.
4,5,
citing City of Columbia
v.
County
of
St. Clair, PCB 85—177,
85—220 and 85—223
(Consolidated),
April
3,
1986,
p.
13.
WMI asserts that
the
21 days prior mailing to
Noonan satisfied this requirement.
WMI disputes the Village attorney’s assertion that the
actual receipt on July
11 overcomes this Board’s presumption of
102—28
—5—
service four days after delivery;
that the Board has,
in fact,
suggested the contrary (citing Phillips p.
5);
that the Board’s
four—day presumption of service would be defeated anytime a
property owner,
for any reason
—
inadvertence, unavailability
etc.
—
delayed or
ignored picking up or signing certified mail
service;
and that the presumption promotes a site location
approval process that operates efficiently and fairly.
WMI also
points out that there was no sign indicating
in what manner
deliveries should be made and,
indeed, Noonan may have arranged
for pick—up of
its mail during the vacation period.
WMI asserts
that the important interests of administrative economy,
efficiency and fairness should “not be thwarted or compromised by
a lone property owner’s business or vacation schedule”.
(Pet.
Reply Br.
p.
3.)
Finally, WMI argues that the Village, by declining to
dismiss on jurisdictional grounds,
recognized that
the notice on
Noonan complied with Section 39.2(b),
as did all the other
notices and newspaper publication
in the county.
Thus,
the Board
should reject the Village’s arguments against the Village’s own
decision and find that the Village did,
in fact,
have
jurisdiction.
Board Discussion
Before discussing the timely notice issues,
the Board takes
special note of the Village’s asserted decision in its resolution
not to rule on the jurisdictional issue and the anomaly of having
the Village subsequently arguing, through its attorney,
that the
Village had in fact lost jurisdiction.
Even ignoring
the
anomaly,
the Village cannot,
in effect,
support its refusal to
rule on the jurisdictional issue of notice by claiming that
ruling on the criteria
is dispositive.
A jurisdictional defect
is dispositive
of a case ab
initio.
See Illinois Power
Co.
v.
Illinois Pollution Control
Board,
137 Ill.App.3d 449,
484 N.E.2d 898
(4th Dist.
1985).
This
is true whether
or not the Village elects,
in the interests of
judicial economy,
to also rule on the criteria.
Only
if there
were
no jurisdictional defect would
the ruling on the criteria be
dispositive.
For the Village
to argue on appeal
that there
is a
jurisdictional defect contradicts the Village’s decision that its
findings on the criteria were dispositive.
However, since
~he
Board must rule on the jurisdictional issue
in any event,
the
Board has included in its consideration all arguments in this
matter.
The Board finds
that notice was timely served by WMI’s
certified mailing.
This being the case,
the Board need not
address the issue of
notice given by the process server.
In both City
of Columbia and Phillips
v. County of Wabash
the Board formally referenced its procedural rules’ presumption
that service
is accomplished after
four days,
to determine that
a
102—29
—6--
lesser time constitutes a defective notice.
Here,
the certified
mailing timeframe at issue
is greater,
i.e.,
21 days.
While the
Board did not earlier make a formal holding as to what
constitutes service under the circumstances here,
(it was not at
issue),
the Board gave ample forewarning
of its concerns
in City
of Columbia about the consequences of absolutely requiring that
receipt of service controls the timeclock
in all cases.
The Board does not construe the “caused to be served”
language of Section 39.2 as requiring that receipt of service as
signed is the only date by which
the 14—day notice requirement
may be counted.
The Board has already construed the Act as requii~ing
initiation of service “sufficiently far
in advance
to reasonably
expect receipt of notice
14 days
in advance of filing of
a
notice”.
(City of Columbia,
p.
13,
Ibid.)
The 21—day certified
mailing certainly constitutes a reasonable expectation.
That
Noonan did not sign the receipt until 10 days later does not
overcome this expectation;
it does not matter whether the delay
was caused by absence,
inadvertence, or deliberate avoidance.
The Village’s argument that
“the receipt as signed” must control
leads to the conclusion that notice can never be perfected by the
“reasonable initiation of mailing,” and thus conflicts with the
holding by the Board.
If the signed receipt, whether signed
timely or untimely, always controls,
it would
thus make no
difference whether mailing was initiated sufficiently
far
in
advance.
Therefore, only
if the receipt ends up not being signed
at all,
the argument implies, would early mailing perfect
service; this latter state of affairs simply would place the
whole proceeding in an ongoing limbo, effectively conferring upon
absent or opposing neighbors the power
to frustrate perfection of
service, unless one were willing
to declare that
there
is,
in
fact,
a point
in time when the signing of
a receipt
is not
dispositive.
That is precisely the reason that the Board
is
holding that,
if receipt
has not been timely signed
in relation
to the 14—day timeframe
(if
it has been there
is no issue),
or
not signed at all,
the Board will look to the timeliness of
the
mailing to determine whether service has been perfected.
The Board points out that the Village’s only suggested
remedy for WMI’s purported failure of notice
is
to require
the
applicant to re—notice and refile;
this is not only not
a remedy,
it
is precisely this rollover result that could render an
application incapable of ever being
refiled.
The Board notes
that over
30 persons had to be served
in this case.
(Pet.
Ex.
8—
10.)
This is the first SB 172 case appealed
to the Board where
there has not been
~pj~
“third party” opposition,
and even
~c, a
company’s vacation schedule frustrated
a two—fold effort
t.
secure timely signed receipts.
Were the Board to accept
the
Village’s arguments, opponents could frustrate the whole
Si3 172
procedure at the outset~by absenting themselves or otherwise
delaying acknowledgment of
receipt of notice.
The Board declines
to construe Section 39.2 as creating such a loophole.
102—30
—7—
As there were no issues of fundamental fairness,
the Board
will proceed to
a description of the proposed facility.
The Proposed Facility:
The solid waste transfer station is proposed to be
constructed on seven acres of property by Garden City Disposal
(“Garden City”),
a division of WMI.
The site
is located
in the
relatively small portion of Bensenville located
in Cook County,
rather
than DuPage County.
Part
of the site has been used for
10
years as a storage and maintenance area
for Garden City’s waste
hauling operation where,
on an average day,
46 trucks,
i.e.,
26
rear loader
trucks and
20 roll—off trucks,
enter and leave the
site.
There are presently about
91 employees.
Garden City
is
starting
a curbside recycling program for
glass and cans
in the
Village of Elk Grove, and will use two dedicated recycling trucks
to bring
the separated glass and cans
to its preseent facility
for reloading and transport.
(R.
115—118).
The site
is located
in an industrial,
heavy commercial area.
(Pet.
Ex.
1, Criterion
6,
p.
3,
R.
61.)
Most,
about
70 percent,
is waste
from roll—off
containers from factories and consists of wood,
corrugated
cardboard and paper,
the
rest being household waste collected
pursuant to a residential contract with the Village of Elk
Grove.
There
is no special waste involved, hazardous
or non—
hazardous.
Garden City wishes to establish its transfer station
to receive the waste
it now
takes directly
to landfills, compact
it,
and reload it onto 12
transfer trailers destined for
landfills.
They intend first
to cull the cardboard and bale
it
for reuse prior
to compaction of the waste.
(R.
87.)
The
facility would also be used for removing from the waste stream
wood skids
(aided by
a shredder),
and aluminum, paper,
and
glass.
About
4 more persons would
be added for the transfer
station operations.
WMI
is considering using
four different
landfills:
one
in
Batavia and the Green Valley landfill
in Naperville
(they take no
waste to these two now)
and the Lake landfill
in Northbrook and
one
in South Elgin
(about
10
of the loads presently are taken
to
these two
(R.
107—109).
WMI has also stated that
it will not
take waste to a proposed Northwest Municipal Conference
“balefill”
near Barlett;
also,
since Elk Grove Village
is part of
the balefill proposal,
its waste would go
to a baler transfer
station and thus that waste would not go to the proposed transfer
station.
(R.
9,
119,
138,
144;
Pet.
Ex.
1,
Criterion
4,
p.
2.)
Statutory Criteria
Waste Management claims that the Village’s conclusions as
to
Criteria Nos.
1 and
6 are against the manifest weight of
the
evidence, and that the Village’s decision should be reversed and
site location approved.
We
will
review each of
these criteria
in
turn.
102—31
—8—
Section 40.1
of the Act charges this Board with reviewing
the Village’s decision.
Specifically, this Board must determine
whether the Village’s decision was contrary to the manifest
weight of the evidence.
E&E Hauling,
Inc.
v.
Illinois Pollution
Control Board,
116 Iii. App.
3d
586,
451 N.E.
2d 555 (2nd dist.
1983),
aff’d in part 107 Ill.2d
33,
481 N.E.2d 664 (1985); City
of Rockford v.
IPCB, 125
Ill. App.3d
384,
386,
465 N.E.2d 996
(1984); Waste Management of Illinois,
Inc.
v.
IPCB, 122
I11.App.3d 639,
461 N.E.2d 542 (1984).
The standard of manifest
weight of the evidence
is:
A verdict
is
...
against
the manifest weight
of
the
evidence
where
it
is
palpably
erroneous,
wholly
unwarranted,
clearly
the
result of passion or
prejudice,
or appears
to
be arbitrary,
unreasonable, and not based upon
the evidence.
A verdict
cannot
be
set
aside
merely
because
the
jury
County
Board
could
have
drawn
different
inferences
and
conclusions
from
conflicting
testimony
or
because
a
reviewing
court
IPCBI
would
have
reached a different inferences and conclusions
from
conflicting
testimony
or
because
a
reviewing
court
IPCB
would
have
reached
a
different
conclusion
...
when
considering
whether a verdict was contrary to the manifest
weight
of
the
evidence,
a
reviewing
court
(IPCB)
must
view
the
evidence
in
the
light
most favorable
to the appellee.
Steinberg v.
Petra,
139 Ill.App.3d
503,
508
(1986).
Consequently,
if after reviewing the record,
this Board
finds that the Village could have reasonably
reached its
conclusion,
the Village’s decision must be affirmed.
That
a
different conclusion might also be reasonable
is insufficient;
the oPposite conclusion must be evident
(see Willowbrook Motel
v.
IPCB,
135 Il1.App.3d 343,
481 N.E.2d 1032 1985).
In light of the Board’s Section 40.1 duty,
it again must be
noted that there was no evidence or testimony offered
in
opposition to the evidence and testimony of WMI.
As
a result,
the record that was reviewed by the Village of Bensenville
in
this case is basically one-sided.
Obviously where evidence and
testimony are offered in opposition
to the positions
of
the
Applicant,
there exists a more complete record upon which to
review a local siting decision.
However, Section 39.2 of the Act
does not impose
a dut~’upon any person other
than the applicant
to present evidence with respect
to an application.
Therefore,
it
is conceivable that records such as this were contempLited by
the General Assembly
in empowering county boards or governing
bodies of municipalities to grant
or deny their approval.
Thus,
the Board believes that the lack of evidence in opposition
to an
application
is not,
in and of itself,
grounds for reversal.
The
102—32
—9—
Board believes that even where all of the evidence submitted is
that of the applicant, the local decision making body may still
deny its approval.
Reasons for denial may include, but are not
here limited to,
a local decision making body’s finding that the
applicant has not met his burden of proof on any or all of the
criteria or that the applicant’s proof
is not credible.
To further complicate
the Board’s review,
the Village
decision denying approval to WMI does not articulate
its findings
or reasons
for denial.
Although an articulation of the reasons
for denial would be helpful to this Board’s review,
such an
articulation
is not required under
the Appellate Court’s decision
in E&E Hauling,
Inc.
v. Pollution Control Board,
116 Ill.App.3d
586,
451 N.E.2d 555
(1983), wherein the Court stated:
...
the county board need only indicate which
of the criteria,
in its view, have or have not
been met,
and
this will
be
sufficient
if
the
record
supports
these
conclusions
so
that
an
adequate review of the county board’s decision
may be made.*
Thus,
it
is
for this Board to
review the record to determine
whether the Village’s conclusions are supportable
by the
record.
We now turn to the contested criteria.
Criterion No.
I
Section 39.2(a)(l)
of the Act requires that the applicant
establish that “the facility
is necessary to accommodate
the
waste needs of the area
it
is intended
to serve”.
Relevant case
law from the Second District Appellate Court provides guidance on
the applicable analysis of this criterion:
Although
a
petitioner
need
not
show
absolute
necessity,
it must demonstrate an urgent
need
for the new facility as well as the reasonable
convenience
of establishing a new or expanding
an
existing
landfill.
..
.The
petition
must
show that
the landfill
is
reasonably
required
by
the
waste
need
of
the
area,
including
consideration
of
its
waste
production
and
disposal capabilities.
Waste
Management
of
Illinois,
Inc.
v.
PCB,
175 Ill.App.3d
1023,
530 N.E.2d
682
(2nd Dist.
1988);
citing Waste Management
of
Illinois,
Inc.
v.
Pollution
Control
Board,
123
111.
App.3d
1075,
463
N.E.2d
969
(1984).
*
The Board notes that this holding
was
recently affirmed
in
Gerald Clutts
v.
Herman Beasley and Alexander County, No.
5—88—
0438,
slip
op.
at
3
(5th dist. July
18,
1989).
102—33
—10—
The Village’s decision of February
2,
1989,
states:
upon
due
consideration
of
the
record
before
the
Village
Board
as
applied
to
the
criteria
using
the
preponderance
of
the
evidence
standard,
the
Bensenville
Village
Board
hereby
finds
that
the
applicant,
WMI,
has
failed
to meet
its burden of
proof as
it
relates
to Criteria
(sic)
i (need)...
As discussed above this Board must review the record to determine
whether this decision is supportable by the record.
Based on our review of the record we find that the Village
could reasonably have determined that WMI did not meet its burden
of proof with respect to the need criterion.
In support
of this criterion, WMI offered the testimony of
Mr. Edward Evanhouse,
the general manager of Garden City Disposal
Company.
Mr. Evanhouse asserted that the transfer station
is
necessary based on three factors:
a)
the continuing decrease in
available landfill space
in the vicinity of the service area;
b)
the imposition of a quota system by the nearest available
landfill; and c)
the present inefficiencies of transporting waste
from the service area
to disposal sites.
Mr. Evanhouse’s
testimony is found at pages
128 through 148 of the transcript.
On cross—examination,
the Village attorney asked Mr.
Evanhouse questions which explored his knowledge with respect to
whether the transfer station “is necessary to accommodate the
waste needs of the area
it is intended to serve”.
Because the
Board’s affirmance of the Village’s decision
is based
in part on
the testimony under cross—examination,
the Board believes it
helpful to
recite certain portions of that testimony here.
Q.
Mr.
Evanhouse,
where
is
the
area
its
intended to serve?
A.
Garden
City
has
a
service area
that
it
generally
bounded
on
the
south
by
North
Avenue,
and approximately California Avenue on
the east,
and on the west Rout
53,
and on the
north
we
go
as
far
as
Euclid
and
then
Milwaukee
Avenue
south
to
Golf
east
to
California.
Q.
Is ther~anywhere
in the application
that
it talks about the service area at all?
A.
I am not sure
if there
is.
I don’t
think
so.
102—34
—11—
Q.
Well,
you
prepared
the
section
on
Criterion
1,
that
being
whether
or
not
this
facility
is
needed.
Is
it
contained
in that
section?
A.
No,
it’s
not.
Probably an oversight
on
my part.
Q.
Garden City doesn’t service all the waste
needs within this area;
does
it?
A.
No, we don’t.
Q.
In
fact,
does
it
serve
any
of
the
residential portions of that area?
A.
Yes,
we
have
one
residential
contract
which
is with the City of Elk Grove Village.
Q.
What
percentage
of
waste
do
you
serve
within this service area?
A.
I
really
would not
be able
to venture
a
guess
on that.
R.
132—133.
This witnesses testimony,
the remainder
of which will not be
reprinted here,
indicates to us that the Village’s finding that
the application does not demonstrate
that the facility
is
“necessary to accommodate the waste needs of
the area
it
is
intended to serve”
is not against the manifest weight of the
evidence.
The witness admits that the application does not
discuss the service area at all.
R.
at 132.
Further,
the
witness was not certain of the amount of waste his company takes
to the Lake Landfill
in Northbrook,
a WMI
landfill.
R.
at 134.
He did not know how much waste the Congress Development Company
Hillside Landfill was accepting
from his company.
R.
at 136.
To
us,
these are necessary factors
in any consideration of the waste
needs of the area intended to be served.
The record
indicates
that these landfills are within a reasonable distance to
accommodate the waste needs of
the area.
R.
137—141.
Since the
evidence
is uncertain on these factors, we believe that the
Village could reasonably have concluded that the applicant had
failed to meet its burden of proof on this criterion.
The
Village’s decision
is,
therefore,
not against the manifest weight
of the evidence, and
is,
therefore affirmed.
Criterion No.
6:
The sixth criterion specified in Section 39.2(a)
of the Act
for local siting approval
is as follows:
102—35
—12—
6.
the
traffic
patterns
to
or
from
the
facility
are
so designed
as
to minimize
the impact on existing traffic flows.
Mr. David Miller,
a traffic engineer and President of Metro
Transportation Group,
testified for WMI on Criterion No.
6.
The site
is located on the northeast corner of the
intersection of County Line Road (dividing Cook and DuPage
Counties) and Franklin Avenue, a minor arterial highway
designated as a truck
route with a 35 mph speed limit.
There is
a signal at the intersection; County Line Road terminates north
of the intersection and Franklin Avenue
is called Green Street
west of
the intersection in DuPage County.
Access tothe site
is
from Franklin Avenue.
(Pet.
Ex.
1, Criterion No.
6.)
No school districts operate buses
in front of the site.
Existing traffic on Franklin Avenue is about 18,000 vehicles/day
and on County Line Road south of Franklin is about 8,300
vehicles/day.
The vehicle traffic inbound and outbound during
morning and afternoon peak hours
(determined to be 7:00—8:00 a.m.
and 4:30—5:30 p.m.), was counted.
(Pet.
Ex.
1, Criterion No.
6.)
The 46 inbound/outbound site trucks move mostly during off—
peak hours,
leaving between 5:00—6:00 a.m. and returning
somewhere between 2:00 p.m.
to 5:00 p.m.
The
91 employees come
and go at staggered times,
ranging from 5:00
a.rn.
to 12:00 p.m.
depending on the shift.
Mr. Miller’s opinion that the facility has been designed to
minimize impact
is based on the fact that existing site vehicular
traffic occurs during off—peak hours, and the fact that Franklin
Street
is a designated truck route with a substantial amount of
traffic from industrial users along Franklin as well as by trucks
passing through.
Mr. Miller also testified that Franklin Avenue might be
“service level D,” with
“A” denoting least congestion and
“E”
being the worst, based on peak hours,
about 1,800—2,000 vehicles,
and other factors.
(R.
178—80.)
He also testified that, while
truck trips are being added in the immediate area, on an overall
area basis, truck
trips and travel miles would actually be
reduced.
(R.
181.)
The additional daily traffic generated by the transfer
facility would amount to four additional employees and 60 truck
round trips,
or
120 each way,
including the
12 transfer
trailers.
Mr. Miller estimates
10 additional vehicular
trips
during the morning peak hour,
representing only about 0.6
of the
whole.
In the afternoon peak hours,
the additional traffic
burden would be even less;
Mr. Miller estimates that only two
additional employees would.be leaving the site.
(Pet.
Ex.
1,
Criterion
6,
p.
5,
6;
R.
152—55,163.)
102-~36
—13—
Regarding the internal circulation at the site,
Mr. Miller
testified that it
is more than adequate.
(R. 155.)
Mr. Miller
also testified that only the easternmost of
the three driveways
would be used; utilizing the easternmost driveway, the driveway
most distant from the traffic light,
further
minimized the
negligible impact
of the operation on the existing traffic flows
in relation to
the stop light.
Mr. Miller stated that the 60
trucks inbound and 60 outbound, including the 12 transfer
trailers, would tend to be spread out because of the nature of
the truck
trips,
resulting in an average
of about five vehicles
in and
5 out each hour over the course of
a day
(R.
164);
that a
“gap” study showed no problem with acceleration of loaded trucks
(R.
166);
that they had done mechanical counts
to determine the
peak hours;
that the counts were done
in September, considered a
normal month
(R.
184);
that the study did not include the
possibility of potential recycling traffic since the recycling is
from the refuse that comes
in, and extra
traffic depends on the
extent
it might be open to the public, but that the facility
is
fenced in
now.
Mr. Miller testified that he did not investigate whether WMI
could extend County Line Road north so vehicles could enter and
exit on County Line Road;
he did not know
if it could be done
physically or the safety impact
it would have on the drive
immediately to the west
or whether
it would
be feasible.
In any
event, he does not believe that,
with traffic volumes and
patterns as they are now,
the added traffic would affect
the
existing traffic flows.
(R.
191.)
Finally, he testified that eastbound trucks or vehicles
presently making
a left turn into the facility were not found,
even at peak hours,
to have more than one or two vehicles behind
them, and there was no backup to the County Line/Franklin
intersection to the west.
He also noted
that there
is additional
pavement tapered to accommodate left turning westbound traffic,
for cars to pass.
(R.
194.)
The Village argues that WMI
failed on Criterion No.6 because
WMI’s traffic engineer failed to account for potential recycling
traffic and additional personnel;
that the present
level
“D”
traffic congestion
is
ignored by using incremental
increases;
that comparing the increased local traffic versus overall traffic
is nebulous
for purposes
of minimizing existing traffic flows;
and that WMI failed to consider the possibility of the potential
mitigation effect of changing the traffic flow by extending
County Line Road.
(Village Br.
p.
7—9.)
WMI responds that the traffic effects are negligible;
that
peak hour effects are minimized;
that no improvements
to the road
system are needed;
that internal site circulation will
accommodate facility traffic;
that Mr.
Miller did consider any
increase
in recycling traffic, noting that the recycling will
involve separating waste
in vehicles already existing;
that
increased traffic would be off-peak
in any event;
and that
102—37
—14—
extending County Line Road could create safety problems because
of turning conflicts with an existing access drive and
is not
possible because WMI does not own all the property.
WMI asserts
that Mr. Miller was not impeached in any meaningful manner.
(WMI
Reply Br.
p.
6,
7.)
Board Discussion
The Board, after reviewing the record,
finds
that the
decision of the Village with respect to Criterion No.
6 is
contrary to the manifest weight of the evidence.
WMI demonstrated that it did design its facility to minimize
existing traffic flows.
The record shows that Mr.
Miller did
account for the “recycling” traffic,
i.e.,
the added truck trips,
at the transfer station.
The Village itself asserted,
on
Criterion No.1,
that any planned recycling activities at WMI’s
present facility was not part of the SB 172 process and,
in any
event,
it involves potential,
not existing,
traffic.
Also,
Mr.
Miller’s assessment of
incremental increases above the existing
traffic flows, combined with his assessment of the design of the
traffic patterns
to or from the facility using the eastern
driveway, and his emphasis on the “worst case” peak hour effects
is hardly a “nebulous” way to “minimize the impact on existing
traffic flows”.
Also,
the level
“D” designation
is derived from
peak hour traffic, where in this case the impact of facility
traffic is negligible,
involving
10 trips
in the morning and two
cars
in the afternoon.
Franklin Street
is a designated truck
route and there was nothing
in the record to contradict Mr.
Miller’s overall testimony that the facility’s impact was minimal
throughout the day and that the use of
the easternmost driveway
further minimized whatever impact
there was.
The Village’s denial because WMI failed
to consider changing
the existing traffic flows, does not comport with the
demonstration requirements of Criterion No.6,
and certainly not
when there is nothing
in the record
to contradict Mr. Miller’s
testimony showing that the impact was negligible on the existing
traffic flows.
E
&
E Hauling,
Inc.
v.
Illinois Pollution Control
Board,
116 Ill. App. 3d
586,
451 N.E.2d 555,
577
(2d Dist.,
1983)
aff’d
in part 107
Ill.
2d
33,
481 N.E.
2d 664
(1985).
WMI’s
presentation specifically and sufficiently addressed Criterion
No.6.
The Village,
in its quasi—judicial role, could not have
reasonably concluded otherwise based on the manifest weight of
the evidence, and the Board so finds.
In summary,
the Board affirms the Village of Bensenville’s
denial of local sitin~approval
to WMI’s proposed waste transfer
facility based on Criterion No.
1.
This Opinion constitutes the Board’s findings of
fact and
conclusions of law in this matter.
102—38
—15—
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1987,
ch.
111—1/2, par. 1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Members.
J. Anderson J. Marlin and J.
Theodore Meyer
dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify~that the above Opinion was adopted on
the /~r?Zday of
~—~~c-.--i-
,
1989, by a vote of
~~/—~3
Dorothy M,//Gunn,
Clerk
Illinois P’ollution Control Board
102—39
