ILLINOIS POLLUTION CONTROL BOARD
June 30, 1983
FRINK’S INDUSTRIAL WASTE,
INC.,
Petitioner,
V.
)
PCB 83—41
)
CITY OF ROCKFORD,
)
Respondent.
DONALD
L. SHRIVER (D~MNEY,YALDEN, SCHRIVER
& YALDEN) APPEARED ON
BEHALF OF PETITIONER; AND
RONALD SCHULTZ, ASSISTANT CITY ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board on the Frink’s Industrial
Waste,
Inc.
(Frink’s) March
25,
1983 petition for review of the
City of Rockford’s
(City) February 21,
1983 denial of site
Environmental Protection Act (also known as SB 172 and P.A.
82-682).
Approval was denied for location of a new industrial
waste processing and transfer facility to handle special and
hazardous wastes, which Frink’s proposes to locate at the south-
west corner of Kishwaukee Street and Boeing Drive in the South
eypass Industrial Park,
City of Rockford, Winnebago County.
The
City’s denial was based on findings that Frink’s had failed to
satisfy two of the six criteria of Section 39.2:
Section
39.2(a)(2),
“that the facility is designed, located, and proposed
to be operated that the public health,
safety and welfare will
be protected”, and
Section 39.2(a)(3),
“that 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
surrounding property”.
Primary objection involves the existence
of the Riverdahi School some 2000 feet to the northeast of the
site.
Public hearing
in this matter was held by the Board in
Rockford on June
3,
1983*.
At hearing, testimony and argument
*The transcript of the Board hearing will be referenced as
“R.
____“,
and to the record of proceedings before the City as
“City Red., Vol.
____,
Item
____.
The Board’s review of the
City Record was considerably simplified by the City’s fine
organization of the materials submitted to it.
52-473
2
were presented by Frink’s, argument was made by the City, and
testimony and comment were made by various citizens, many of whom
had participated in the public meetings and hearings held by the
City.
Neither party filed closing briefs,
Frink’s relying on its
initial petition, and the City on its reply thereto.
Prior
to
presentation
of
a
more
precise
description
of
the
proposed location, design and operation
of
the
Frink’s
facility,
the Board will briefly set forth the proceedings before the
City,
in the interests of having the facility description in close
juxtaposition to the issues in dispute.
PROCEEDINGS BEFORE THE CITY
On November 8,
1982 Frink’s filed its Request for Site
Location Approval
(City Rec. Vol.
1).*
Pursuant to the City
Council’s usual rules, the Request was referred to the standing
Committee on Community Development
(Committee).
A public
hearing was held by the Committee on November 18,
1982
(Id.,
Vol.
2,
Item 36).
The Committee discussed the Request at its
meeting of December
2,
1982,
and received additional comment at
an informal meeting held December
9
(Id., Vol.
2,
Items
37 and
38).
A Committee Report was adopted at a January
6,
1983
meeting, recommending City Council approval of the Request,
on
the basis that all six criteria had been satisfied
(Id.,
Vol.
2, Items
39—40).
The City Council itself had an additional public hearing on
January 24,
1983.
Prior to the hearing,
the City had received
written comments from citizens asking questions about the facility
(e.g.
Id.,
Items
7,
16),
from industry and citizens expressing
necd fcr and approval of the Frink’s facility (Id., Vol.
2,
Items
8,
9,
11,
12,
14,
15,
17—21,
23, 32),
from governmental
entities expressing lack of specific objection or qualified
approval
(Winnebago County Health Department--Id.,
Vol.
2,~Item
2; Mayor’s Environmental Advisory Committee--Id.,
Vol.
2,
Item
10;
Staff Report, Department Community Development--Id.
Vol.
2,
Item 26), and from citizens and industry opposing the facility
(Id., Vol.
2, Items
3,
4,
5,
22,
24,
31,
33,
34).
The same
range of opinions is reflected in the testimony and 20 exhibits
presented at the Council’s hearing, the most notable exhibit
perhaps being citizen petitions against approval of the site
containing 2033 signatures
(Id., Vol.
3,
p.
6 and Vol.
4A).
(Petitions against site approval signed by 365 citizens had
previously been submitted to the Committee——Id.,
Vol.
2, Item
36,
p.
10, and Item 37,
p.
5, and Vol.
2A.)
*Subsequent submittals supplementing the original
application
are found in City.
Rec. Vol.
2,
Items
13 and 25(a—b), Vol.
4,
Ex.
3—18, and Vole.
5,
5A—C.
52-474
3
On February 14,
1983 the Council voted to adopt an amended
Committee Report denying the Request for failure to comply with
the public health, safety, welfare criterion and the location
incompatibility criterion, which amended report was adopted by
Council resolution February 21,
1983
(Id. Vol.
2, Items 40,
1).
SITE, DESIGN, OPERATION AND LOCATION
THE PROPOSED FACILITY
The Site
The proposed Frink’s Rockford facility is intended to
process four types of liquid wastes now handled by the existing
Frink’s Pecatonica facility:
alkaline water
(5000 gallons per
day average), coolant-cuttings oils
(3000 gpd avg.),
chromium and
zinc phosphates
(8000 gal. per month avg.), and solvent-water
(1000 gpd avg.)
(Vol.
1,
Table I).
Frinks—Pecatonica currently
receives 85
of such wastes generated in the Rockford area.
The proposed facility as designed by ERC/Lancy has been
referred to as “state-of—the—art”.
ERC/Lancy works exclusively
in the field of design of treatment systems for chemically
contaminated wastes,
and has designed 2,000 treatment facilities
throughout the world over the course of the last 30 years
(Id.,
Vol.
2,
Item 25(a).
Liquids would be unloaded from 5,000 gallon capacity trucks
(one at a time) by a quick couple between the truck hose and
facility piping.
The floored truck ramp where this would occur
serves
as a spill containment area having a 7724 gallon capacity.
Spills would collect in a central spill collection sump with
level controls, an alarm system,
a pumping system to convey the
liquid to a storage tank for processing.
Incoming wastes are to be directed to one of four 10~000
gallon holding tanks dedicated to one of the four particular
waste types.
Wastes are then sent through a treatment system,
the different waste types receiving differing treatments.
Reclaimed solvents are to be stored in a 6,000 gallon capacity
tank,
and reclaimed oils in a 15,000 gallon capacity tank, before
they are hauled away.
Wastewaters will be directed to an
elevated sewer, thence to the Rockford Sanitary District for
treatment,
and sludges hauled away for proper landfill disposal.
All tanks are covered, and located on a raised 4” pad.
Each
has an exterior level gauge, an alarm system and pumping system.
The waste storage and treatment system is floored,
so that all
spills will be directed to the floor spill collection system
mentioned earlier.
The incoming storage tanks, as well as the oil storage tank,
will be vented to a common exhaust mainfold,
on which a slight
52-475
4
negative pressure will be maintained.
This will cause continuous
air flow into the tanks, to direct any volatile compounds into
an activate&carbQn cWamber.
Emission will be through a 2”
line,
8’
above the ground through the wall at the north side of the
building
(Id., Vol.
1,
Tab I-J, Vol.
2,
Item p.
5(a).
The Location
Frink’s proposes to locate in Lot
1 of the Southbypass
Industrial Dark, which lot is bounded on the north by Boeing
Drive, and on the east by -Kishwaukee Street.
Lot
2, directly to
the west of Frink’s is occupied by Interstate Pollution Control,
which processes industrial oils and wastewater by filtration.
There are “several other industrial buildings to the West
dominated by the large Greenlee industrial building one block to
the west”.
Immediately to the north of Frink’s, north of Boeing
Drive but to the south of Route 194 Bypass,
US 20 is the “newer
and much larger industrial building...occupied by Honeywell Motor
Products”
(Id., Vol.
5,
Ex.
C, p.
1).
To gain
a perspective on
the larger area, it is helpful to consider the two pages of the
1971 Supervisors Assessment Map presented by Frink’s at the City
Council’s public hearing
(Id., Vol.
4,
Item 3), and the 1978
aerial photo submitted at the Board’s hearing as hearing Ex.
1.
This portrays an area bounded to the north by Sandy Hollow Road
(4000 S), to the south by an unlabelled broken line
(4500 S), to
the west by the Rock River
(1000
E) and to the east by another
unlabelled broken line (2000 E).
The rectangle is bisected on
the north—south axis by Kishwaukee Street,
a
4 lane highway, and
on the east-west axis by the Route 194 Bypass,
US
20,
which is a
4—lane,
limited access divided highway, elevated over Kishwaukee
at their intersection.
Immediately to the east of the Rock River and to the north
of the bypass is the Rockford Sanitary District
(RSD)
Treatment
Plant.
To the east of RSD lies the Kishwaukee Industrial
Subdivision and Kishwaukee Street.
To the east of Kishwaukee is
the Riverdahl School and playground, then railroad tracks,
and
the Gates Rubber Company.
Directly south of Gates and the bypass
lies the National Lock Co., which is bounded to the west by the
tracks.
West of National and directly south of the school is
property owned by the Rockford Local Development Corp., bounding
property of the Sundstrand Corp. to the north and east with
Kishwaukee being the western boundary.
The South Bypass
Industrial Park is located in the area west of Kishwaukee and
east of the Rock River, and is bounded in part at its southwest
corner by the Greater Rockford Airport.
The aerial photo,
as marked at hearing, diverges from the
supervisors assessment map only to the extent that the property
directly south of Gates
is shown as vacant, and the Sundstrand
and National properties being due south of Riverdahl School.
The
52-476
5
aerial map also indicates that most of the homes
from which the
school presumably draws its population are located to the north
of the school and Sandy Hollow Road.
Some homes are, however,
located to the southeast of the Sundstrand and National properties.
THE STATUTORY CRITERIA
The relevant portions of the City’s decision are set forth
below:
“B.
Is the facility so designed, located, and proposed to be
operated that the public health, safety,
and welfare will
be protected?
1.
Design:
The design of the plant appears to incorporate
many features to protect the health and safety of the
public.
2.
Location.
Testimony received at the January 24,
1983,
public hearing and the application itself evidence the
extremely hazardous nature of the chmicals to be handled.
Riverdahi School, an elementary school with approxi-
mately 365 students is located approximately 2,000 feet
northeasterly of the proposed site and is served by well
water.
Therefore, despite many proposed design features,
the risk to public health should any of these design
features fail or accidents in opeartion and/or transport
occur, must be considered..
The risk to the heaLth and
safety of the children of this school, considering the
hazardous waste to be treated, its largely unknown
effects, and the soughwesterly direction of prevailing
winds,
is unacceptable.
The public’s overwhelming
concern about this site location in relation to Riverdahi
School is evidenced in the public hearing of January
24,
1983.
3.
Proposed Operation.
The proposed operation of the
facility,
if such operation is performed properly and
with competent personnel, would appear to provide some
protection to the public health, safety,
and welfare.
C.
Is the facility located so as to minimize incompatibility
with the character of the surrounding area and minimize the
effect on value of surrounding property?
No.
1.
The opinion of Appraiser Dale Scott states that
devaluation of property will not occur due to the
addition of another industrial
firm.
However:
2.
Correspondence received from Honeywell,
Inc., which
has a facility on the adjacent parcel, indicates
incompatibility due to the existence of one pollution
52-477
6
control facility in the Industrial Park already.
Therefore,
the use of this area for general industrial
purposes may deteriorate into an exclusive site for
disposal facilities.
3.
The site is incompatible with the nearby location of
Riverdahl School, due to the inherent risks of handling
hazardous wastes.
Short of relocating the school, it
is doubtful that satisfactory measures could be taken
to further minimize this incompatibility.”
(Id., Vol.
1,
Item 1.)
The issues then boil down to location of the site as it relates
to Honeywell,
and as it relates to the school.
The Honeywell Objection
Honeywell’s opposition was first expressed in a
3 sentence,
3 paragraph written comment stating in relevant part
“We believe that one such
waste
processing
establishment;
(sic) namely, Interstate Pollution
Control Company of 4430 Boeing Drive is enough in
an industrial park.”
(Id.,
Vol.
2, Item 22.)
At hearing, Honeywell presented a six sentence statement.
The
three relevant sentences are as follows.
“I believe that this area needs a new waste disposal
site, but not here...
You already have one disposal
site.
You add one more, and the neighborhood goes
you
know where, and what happens to Honeywell and
Greenlee’s investment there?”
(Id.,
Vol
3,
p.
48—49.)
As the City noted, appraiser Dale Scott was of the opinion that
“After considering the improvements in the
neighborhood, it is my opinion that if the pro-
posed Frink’s
(sic)
site
is constructed according
to the plans and specs there will be no damage to
the surrounding properties whether industrial,
commercial or residential.”
(Id., Vol.
5,
Ex. C).
This opinion was contained in a nine—paragraph,
two page
letter.
Mr. Scott recited his qualifications as including
20
years doing real estate appraisal 100
of his time, the current
presidency of the Rockford Chapter of the Society of Real Estate
Appraisers, and membership in the Real Estate Boards and Multiple
Listing Exchange Services of both Rockford and Beloit (Ibid.)
52-478
7
The Board finds that it was against the weight of the
evidence for the City to conclude based on Honeywell’s
unsupported opinion and fears, that the industrial park would
“deteriorate into an exclusive site for disposal facilities”. The
“floodgates” would not be opened if the second of two waste
treatment facilities were to be established.
The City itself
has some control over this through the SB 172 process, and might
properly deny site location suitability approval
if another
facility were not “necessary for the area intended to be served”
(Waste Management of Illinois, Inc., v.
Lake County Board et
al.,
PCB 82—119, December 30,
1982,
p.
8),
In addition, the record
clearly shows that much of the Industrial Park has already
established other general industrial uses.
The Riverdahl School Objection
The City’s incompatibility finding and its negative health,
safety, welfare finding concerning location are each essentially
based on “the inherent risks of handling hazardous wastes”,
and
the special susceptibilities
of school children.
The City points out that the Board has acknowledged that
local government might reasonably review SB 172 approval
applications at different levels of concern, depending on the
type of waste involved——general, special, or hazardous, Waste
Management of
Ill.
Inc.
v. Board of Supervisors of Tazewell
County,
PCB 82-55, August
8,
1982,
p.
9.
Proximity of a regional
pollution control facility to a school
is an appropriate subject
for a high level of concern and a close scrutiny of an
application.
However, absent a legislative per
se rule stating
how close is too close, the Board
is required to determine
whether the facts in the record support the City’s adjudication
on this,
as well as other, points.
One element to be considered
is the nature of the waates,
hence the degree of hazard.
Frink’s introduced evidence that the
flammability of the elements in its waste streams
is less than
many gasolines and solvents in general use and transportation in
the Rockford area
(City Rec., Vol
2., Item 13),
This was
acknowledged by a representative of the Rockford Fire Department,
who saw no potential fire hazard except concerning non—water
soluble solvents
(Id., Vol.
2, Item 36,
p.
5),
Frink’s argued
that the City’s designation of its wastes as “extremely hazardous”
is incorrect.
The City admits that this is
a “laymen’s”
description,
rather than an attempt to draw a non—existant legal
distinction between “extremely” hazardous and hazardous wastes.
The Board notes that at least some of Frink’s wastes, particularly
solvent wastes commonly generated by industry, are carcinogenic
and legally classified as “hazardous” to come in contact with.
However, the Board finds that the risks posed by the Frink’s
wastes are mitigated by the fact that they are diluted with water
from 10
to 90,
depending upon the type of wastes, and by the
containment methods included in the facility design.
52-479
8
Another element to be considered is the nature of the
proposed pollution control facility.
Specific pollution concerns
alluded to by the City are problems of contamination of the
groundwater serving the schools wells and odor problems caused by
emission of volatile organic compounds.
These concerns are the
subject of much testimony and many exhibits at hearing, much cf
which relates to problems at another site operated by Frink’s
in
Pecatonica:
groundwater contamination continuing since
June,
1982,
and odor problems experienced
in the area around that site
prior to 1982
(e.g.
Id. Vol.
4B).
Frink’s has argued that its operation of its Pecatonica
facility cannot properly be considered by the City as reasons
for denial under Section 39.2, since Section 39(f) of the Act
provides that the Agency
is to consider an operator’s prior
history when it is evaluating a permit request.
The City
acknowledged this in its resolution, and did not base its denial
on grounds of Frink’s operation of the Pecatonica site,
The
Board will therefore mention the Pecatonica site here only
because so much of this record is comprised of exhibits and
testimony relating to that facility.
The facts of the Pecatonica groundwater contamination are
set out in some detail in a permit denial appeal,
Frink’s
Industrial Waste,
Inc.
v.
IEPA,
PCB 83—10, June 30,
1983, and
will not be set forth in detail here.
However, the ~contamination
began to appear after an abandoned lagoon containing sludge
residues was opened,
excavated, and allowed to remain open during
a month long period in which Ii inches of
rain
fell.
Underground
storage tanks containing oil and solvent residues are also
present on the site, although these tanks are
in the process
of
being emptied and put out of service.
As indicated in the
portions of the permit appeal record submitted to the City by
Frink’s,
the Agency and Frink’s hotly dispute the cause and
source of the groundwater contamination
(Id.
,
Vol.
SC).
The
proposed Frink’s—Rockford facility is designed precisely to avoid
groundwater contamination with above ground tanks and piping and
spill containment measures to keep wastes off the ground.
Frink’s asserts that odor problems at the Pecatonica site
may in large part have been caused by a hog waste lagoon located
to
the
north
and
east
of
that
site
(Id.,.
Vol.
4,
Items
4
and
7).
In any event, odor complaints have become minimal since 1982,
after closure of sewage and oil lagoons and the sealing covering,
and venting to carbon units of the storage tanks.
The design of
the Rockford facility is again such as to prevent odor problems
caused by emission of volatile organics to the air,
since the
storage
treatment
area
is
totally
enclosed,
and
potential
emissions from tanks and piping are vented through carbon filters
prior to their release outside.
The City in its resolution acknowledges that the proposed
Frink’s facility is designed to prevent these risks, and that
Kishwaukee Street, the proposed route by which
3 tanker trucks
52-480
9
will daily reach the Frink’s site,
is a four—lane arterial street
which should be able to handle the additional volume of traffic.
The City’s conclusion is that, even though risks to health have
been minimized, the possibility of design failures and operational
or transport accidents pose an unacceptable element of risk to the
health of the Riverdahl school children.
Reduced to its essence,
the conclusion is that any element of risk is unacceptable, and
that no “satisfactory measures could be taken to further minimize
(the
incompatibility”
of the proposed Frink’s site with the
school,
since there
is no way to guarantee that failures and
accidents will not occur.
The Board cannot sustain th4s conclusion.
Section 39.2
speaks of “minimizing” incompatibility, dangers from accidents,
and impacts on traffic flows, and “protecting”
of public health.
It does not speak of “guaranteeing no increase of risks”
concerning any of these criteria.
This record does not indicate that the Frink’s building
would be an “attractive nuisance” to children in and of itself.
The barriers presented by the bypass highway, Kishwaukee St., and
the proposed location in the industrial park pose more physical
barriers and actual separation than would be usual between
facilities located 2000 feet “kitty corner” of one another.
The
record would indicate that the predominantly industrial nature of
the area as a whole, and the fact that the area serves
as an air,
rail, and highway transportation nexus,
leads the City’s Fire
Department and Sanitary District to keep a watchful eye on the
area because of the inherent increase in the magnitude and nature
of hazards associated with industrial as opposed to residential
developments. The ERC/Lancy facility design has not been
challenged.
Based on its own review of the record, the Board can
find no special circumstance which can support the Citybs
conclusion that the proposed Frink’s site is located too close
to the Riverdahl School.
The City’s denial of site location
suitability approval
is reversed.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
ORDER
The City of Rockford’s February 21,
1983 decision denying
site location suitability approval to Frink’s Industrial Waste,
Inc.
is hereby reversed.
IT
IS
SO
ORDERED.
52-481
10
Board Chairman J. Dumelle concurred.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
was adopted on the ~3ci
day of
~
,
1983
by
a vote of
~I-o
UAn~
-
Christan L.
Mof~’e
,
Clerk
Illinois Pollution
ontrol Board
52-482
