BEFORE THE ILLINOIS
JUL 281995
POLLUTION CONTROL BOARD
STATE OF
ILLINOIS
C&S
RECYCLING,
INC.,
)
POLLUTION
CONTROL
BOARD
)
Petitioner,
No. PCB 95—100
v.
)
(Permit Appeal/Land)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that I have today filed with the Office of
the Clerk of the Pollution Control Board,
an Amended Petition for
Permit Appeal and Request for Hearing, a copy of which is herewith
served upon you.
cm~ç~CLING, INC.
BY:o
A~Af1f~?
A~ney
Date:
July 28, 1995
Philip J. Rock
Kevin W. Horan
Rock,
Fusco, Reynolds
& Garvey
350 N. LaSalle Street
Suite
900
Chicago, Illinois
60610
(312)
464—3500
~VED
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
JUL 281995
C&S RECYCLING,
INC.,
POLLUTRDN
CONTROL BO~~j
Petitioner,
)
v.
)
No. PCB 95-100
)
(Permit Appeal/Land)
ILLINOIS
ENVIRONMENTAL
PROTECTION
)
AGENCY,
Respondent.
AMENDED PETITION FOR PERMIT APPEAL
AND
REOUEST FOR HEARING
The Petitioner,
C&S Recycling,
Inc.,
(“Petitioner”)
by and
through
its
attorneys,
ROCK,
FtJSCO,
REYNOLDS,
CROWE
&
GARVEY,
hereby petitions the Illinois Pollution Control Board (“Board”) for
a hearing pursuant to 415 ILCS 5/40 and 35
Ill. Adm.
Code 105
~.
~q.
and in support thereof states as follows:
1.
On or about November
28,
1994,
the Petitioner filed an
application before the Illinois Environmental Protection Agency
(“Agency”)
for a permit to develop and operate a municipal waste
transfer station.
After the permit application was docketed by the
Agency, the General Assembly passed, and the Governor approved, P.A
88—681
(HB
1594)
effective December
22,
1994,
which among other
changes deleted the word “regional” throughout the Environmental
Protection Act (“Act”).
2.
In a letter dated February
10,
1995,
the Agency denied
the Petitioner’s permit application.
The denial was based on the
Agency’s determination that the facility is unable to comply with
the December 22, 1994 amendment to Section 22.14 of the Act which,
in
the Agency’s
opinion,
makes
C&S
subject
to
certain
setback
requirements.
(415 ILCS 5/22.14).
A
copy of the Agency’s denial
letter of February 10,
1995,
is attached hereto as Exhibit “A”.
3.
C&S Recycling operates
a recycling facility located on
1.9 acres on the west side of the City of Chicago,
at 4001
West
Taylor,
just north
of the CSX Railroad,
south
of Taylor Street,
west of
Pulaski and east of Karlov.
Copies of two zoning maps
showing the zoning for the property and the surrounding areas are
attached hereto as Exhibits “B” and “C” and are made a part hereof.
The company is family owned and operated and employs approximately
20 people.
It has been in the recycling business since 1989 and
accepts
recycling
materials
generated
within
the
City
of
Chicago
and
the
suburbs.
C&S
presently
collects
source
separated
and
some
commingled recyclables in a volume of approximately 125 tons per
day.
4.
In
its
application
for
a
permit
to
the
Agency,
C&S
proposed an expansion of its recycling facility to a capacity of
approximately
210
tons per
day.
New materials were to
include
commingled recyclables and municipal solid waste.
The application
also proposed the addition of a 4,000 sq.
ft. building for a fully
enclosed tipping floor and loading
dock.
The improvements
are
necessary for a more efficient solid waste transfer and material
recovery and recycling facility which is also known as a MRRF.
5.
In April
1993,
the Zoning Board
of Appeals
of Chicago
jointly met with the City Department of the Environment (“D.O.E.”)
and
resolved,
after
notice
and
hearing,
that
C&S’s
requested
special
use was
approved
and
authorized
a transfer
station
in
2
conjunction
with
the
recycling
facility
in
the
existing
one-story
building.
The application was then considered by the D.O.E.
and
was initially denied in July 1993.
After further discussion and
negotiation with the D.O.E.,
the application was refiled in May
1994 with additional supporting documentation and a second public
hearing
was
held
in
the
community
in
September
1994.
That
application for permit is still pending and is subject to section
11-4-120 of the Chicago Municipal Code as amended.
6.
The
facility
currently
does
not
accept
and
is
not
licensed to accept municipal solid waste.
In order to comply with
the law as it existed at the time its application was filed before
the Agency, C&S proposed to accept municipal solid waste from only
the City of Chicago so that it would be considered as a “local” as
opposed to a “regional” pollution control facility.
7.
In an order dated April
6,
1995 the Board
on its own
motion extended the due date for the filing of a petition on behalf
of
C&S to June
15,
1995.
A
copy
of
the
order
is
attached
as
Exhibit “D”.
A timely petition was filed before the Board on June
9,
1995.
On June 22,
1995 the Board directed the Petitioner to
file an amended petition within 45 days of the date of the order
(i.e.
on or before August 7,
1995).
A copy of the June 22,
1995
order of the Board is attached as Exhibit “E”.
8.
Petitioner seeks a hearing before the Board based on the
following grounds:
1.
Section
22.14,
as
amended,
creates
an
arbitrary
and
unreasonable hardship upon Petitioner;
3
2.
Section
22.14
only
applies
prospectively
to
permit
applications
filed
on
or
after
the effective date
of
December 22,
1994;
3.
The
Petitioner
is
subject
only
to
the
home
rule
requirements of the City of Chicago and not the siting
requirements of Section 22.14;
-
4.
Section
22.14
is unconstitutional
on
its face and as
applied in that it deprives Petitioner of its rights to
due process,
equal protection,
uniformity of
laws and
constitutes a taking without just compensation.
WHEREFORE, C&S Recycling, Inc. respectfully requests a hearing
regarding the Agency’s denial of the permit, and an order from the
Board
requiring the Agency to
issue the permit
for application
number 0316290008.
Respectfully submitted,
R
ycling,
Inc.
~On~f~
A~J~&
Philip J. Rock
Kevin W. Horan
Rock, Fusco, Reynolds, Crowe
& Garvey
350 N. LaSalle Street,
Suite 900
Chicago,
Illinois
60610
(312)
464—3500
4
State of Illinois
ENVIRONMENTAL PROTECTION AGENCY
Mzry
A. Cad~,
Di~c±ox
2200 (J~urchii1
Road,, Spxingfield, IL
62794-9276
217/524-3300
February
10,
1995
C&S Recycling,
Inc.
Attn:
Mr.
Michael
Flood
4827
W.
Harrison Street
Chicago, Illinois
60644
Re: 0316290008
--
Cook County
C&S Recycling/Transfer Station
Log No. 1994-553
Permit
File
Gentlemen:
This will
acknowledge
receipt of your Application for Permit to develop and
operate
a solid waste management
site,
dated November
28,
1994,
and received
by this Agency
on November 29,
1994.
Your permit appflca~jonto develop
and operate
a municipal
waste transfer
station
is denied.
You
have failed to provide proof that granting this permit would not result
in
violations of the Illinois Environmental Protection Act.
Section 39(a)
of the
Illinois Environmental
Protection Act
(ill.
Rev.
Stat.,
Ch.
ill
1/2,
par.
1039(a),
and hereinafter,
Act) requires the Agency to provide the applicant
with specific reasons for the denial
of permit.
The following reason(s)
are
given:
-
1.
The application failed
to demonstrate that the proposed pollution control
facility
is located
at least 800 feet from the nearest residence or
property zoned for primarily residential
uses.
Pursuant to Section 22.14
of the Act,
as
amended
by the December 22,
1994 enactment of House Bill
1594,
if
a proposed pollution control facility
is located
in an
industrial
area of 10 or more contiguous acres
it must be located
at least 800 feet
from the nearest property zoned for primarily residential
uses.
2.
The application failed
to describe
if containers stored out~idewould.,
contain waste,
and
if
so,
if they would
be covered
to minimize the
“
possibility of leachate and/or odors
leaving the property
and’tto minimize
“~~rodent
problems.
This information
is
required pursuant
to Sections
9(a)
and
21(a)
of the
Act-.
3.
The application proposes that municipal waste
be stored overnight on the
tipping
floor without demonstrating how Section
12(a)
and Section 12(b)
of
the Act would not
be violated.
Specifically, the application failed
to
demonstrate
how leachate and odor would
be prevented from leaving the
property and how disease vectors such
as
rodents would
be
controlled.
EXHIBIT
T1A”
~~2/~H
d
8t’:2T
~E6T—t’T—eft~W
Page
2
Within 35 days after the notification of the final
permit decision the
applicant may petition for
a hearing before the Illinois Pollution Control
Board
to
conte5t the decision of the Agency.
Should you wish to reapply or have any questions regarding this application,
please contact Sallie Springer
at 217/524-3300.
Sincerely,
/
Edwin
C.
Bakowski,
P.E.
Solid Waste Branch Manager
Permit Section, Bureau of Land
ECB: SAS/rnl s/24X/30-31
cc:
John
0.
‘Bulut,
P.E.
--
McDonough
Associates,
Inc.
Bill
Abolt
--
City of Chicago Department
of Environment
I!
1~S0dSIG eBHI0~H
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/
7
EXISTING
ZONING
AND
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RESIDENTIAL
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V
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LAND
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DISTANCE
C&S
RECYCLING,
INC.
~
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ILLINOIS POLLUTION CONTROL BOARD
April 6,
1995
C&S RECYCLING,
INC.,
Petitioner,
v.
)
PCB 95—100
)
(Permit
Appeal
-
90-day extension)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
On March 16,
1995, the Board issued an order concerning the
notice of extension of the 35 day permit appeal period pursuant
to Section 40(a) (1) of the Act,
as amended- by P.A.
88-690,’ filed
by C&S Recycling,
Inc.
(C&S).
Noting that it was the first such
request filed, the Board stated that it would dismiss the docket
if an appeal was not filed “on or before May 11,
1995, the 90th
day after February 10,
1995”.
In so stating, the Board had
construed
the
somewhat
ambiguous
language
of
P.A.
88-690
to
allow
an extension of the appeal period for a total of
90 days.
Today,
in PCB 95-105,
Saline County Landfill v.
IEPA, the
Board
granted
an
extension
totaling
125
days
(35
days
plus
a
90-
day
extension),
based
on
petitioner’s
interpretation
of
the
statutory
language,
with
which
the
Agency
did
not
disagree.
In the interests of consistency, the Board on its own motion
reconsiders
its
order
of
March
16,
1995
and
modifies
its
order
as
follows.
The
extension
will
continue
for
a
full
125
days,
so
that in the event C&S fails to file an appeal on or before June
15,
1995, the Board will dismiss this docket.
IT IS SO ORDERED.
P.A.
88—690 amends Section 40(a) (1) to provide,
in
pertinent
part,
the
35—day
period
for
petitioning
for
a
hearing
may be extended for a period of time not to exceed 90 days by
written notice provided to the Board from the applicant and the
Agency within the initial appeal period.
EXHIBIT
UDIU
2
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
~
day of
~k)J....
,
1995,
by a vote of
7
Dorothy M/jGunn,
Clerk
Illinois Pollution Control Board
ILLINOIS POLLUTION CONTROL BOARD
June 22,
1995
C
& S RECYCLING,
INC.,
Petitioner,
V.
)
PCB 95—100
(Permit Appeal—Land)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(R.C.
Flemal):
By order of April
6,
1995 the Board granted C
&
S Recycling,
Inc.
(C&S)
an extension of time through June -15,
1995 in which to
file an appeal of a February 10, 1995 Illinois Environmental
Protection Agency (Agency)
permit determination.
On June
9,
1995 C&S filed a document which it has designated
in the caption as an “Appeal from denial of permit for a transfer
stationt1,
but which it has titled “Petition for a Hearing and/or
Variance”.
While the petition details the history of the
Agency’s February 10, 1995 denial of a application for a permit
for a municipal waste transfer station, the only relief requested
is contained in paragraph seven
(7)
of the petition, which reads:
“Petitioner, therefore,
seeks a hearing and/or variance
as Section 22.14
as amended imposes
an arbitrary and
unreasonable hardship upon Petitioner and a variance is
necessary in order for the facility to continue its
operations and to employ greater recycling and
-
efficient waste transfer in the City of Chicago.”
On June 15, 1995 the Agency ftled a Motion to Dismiss
Portions of Petitioner’s Petition for a Hearing and/or Variance.
The Agency interprets the June 9th C&S filing as requesting both
a permit appeal and a petition for variance.
The Agency argues,
among other things, that the petition is insufficient with
regards to the required contents of
a variance petition as set
forth in the Board’s procedural’ rules at 35
Ill.
Adm.
Code
l04.l’21 and those portions should be dismissed.
The Board cannot grant
a variance from a statutory
requirement in
a permit appeal pursuant to Section 40 of the Act
(415 ILCS 5/40)
and 35 Ill.
Adm.
Code 105.
Variance relief
pursuant to Section 35 of the Act (415 ILCS 5/35)
and 35
Ill.
Adm.
Code 104 can be granted only for five
(5)
years,
at which
time the facility must be in compliance with the Act and
regulations.
~
~
~
~
EXHIBIT
“E~
-
2
Petitioner
is directed to file, withi
forty—five
(45)
days
of the date of this order,
an amended
io
W 1
C
arifies
whether this action is a permit appeal proceeding or
a petition
for variance,
and which satisfies the informational requirements
of 35 Ill. Adm.
Code 105 if the action
is
a permit appeal or of
35 Ill.
Adm.
Code 104 if the action is
a variance request.
In
the meantime, the Board will continue to treat this matter as a
Section 40 permit appeal.
The Board’s one-hundred-twenty
(120)
day time clock pursuant to Section 40 will restart upon the
filing of an amended petition.
If the petitioner intends this
action to be a Section 35 variance, the 120—day decision time
clock will start upon the filing of a sufficient variance
petition.
Given the Board’s actions today as to the instant petition,
the Agency’s motion to dismiss portion of petitioner’s petition
for a hearing and/or variance is denied.
IT IS SO ORDERED.
-.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby
rtify that the above order was adopted on the
____
day of
____________________
/
1995, by
a vote of
__________
/~L~Y
Dorothy N.
Gun,)~Clerk
Illinois
PolJ(/1~ ion Control Board
CERTIFICATE OF SERVICE
I, JOHN FLYNN,
on oath state that I have served the attached
Amended Petition for Permit Appeal and Request for Hearing
and Notice of
Filing,
by personal delivery to the Board
and by
regular mail
to the Agency.
SUBSCRIBED
AND
SWORN
TO
BEFORE
ME
this
2
th day of July 1995.
ALl
Notary Public
2
SERVICE LIST
Dorothy N. Gunn
Clerk
Illinois Pollution Control Baord
100 W. Randolph Street
Suite 11—500
Chicago, Illinois
60601
Kyle Nash Davis, Esq.
Assistant Counsel
Bureau of Land Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
P.O. Box 19276
Springfield,
IL
62794—9276
3
