RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
OCT 19 2O~4
STATE OF
ILLINOIS
VILLAGE OF ROBB1NS and, ALLIED
)
Pollution Control Board
WASTE TRANSPORTATION, iNC.
)
)
Petitioners,
)
)
vs.
)
CaseNo. PCBNo. 04-48
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF
FILING
TO:
All Counsel ofRecord (see attached service list)
PLEASE TAKE NOTICE that on October
IC
2004, the undersigned filed with the
illinois Pollution Control Board, 100 West Randolph Street, Chicago, illinois 60601, an original
and nine copies ofthe Waiver ofDecisionDeadline, copies ofwhich are attached hereto.
Dated: October
/ &‘
,
2004
Respectfully Submitted,
ALLIED WASTE TRANSPORTATION, INC.,
Petitioners
By: VILLAGE OF ROBBINS
4Lske~~
William Mansker
Village ofRobbins
3327 W.
137th
Street
Robbins, illinois 60472
Phone: 708-385-8940
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AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code ofCivil
Procedure, hereby under pe~altyof perjury under the laws of the United States of America,
certifies that on October
I
~‘
,
2004
,
a copy ofthe foregoing was served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
John J. Kim
Renee Cipriano
Special Assistant Attorney General
Division ofLegal Counsel
1021 N. GrandAvenue, East
Springfield, IL 62794-9276
Mr. Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph, 11th Floor
Chicago, Illinois 60601
Mr. Charles Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
By depositing a copy thereof, enclosed in an envelope in the United States Mail at Matteson,
Illinois, proper postage prepaid, before the hour of
5:
0 P.M., addressed as above.
‘Mr. William Mansker
Village ofRobbins
3327W. 137th Street
Robbins, IL 60472
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70425831v1 820753
RECE~VE~
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL
BOARD ~
OF THE STATE OF ILLINOIS
STATE
uL~T
OF
1 ~
ILLINOIS
2004
VILLAGE OF ROBBINS and ALLIED
)
PoHut~onControl Board
WASTE TRANSPORTATION, INC.,
)
)
Petitioners,
)
)
vs.
)
Case No. PCBNo. 04-48
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION TO
RECONSIDER
NOW COMES Petitioner, VILLAGE OF ROBB1NS, by and through undersigned
counsel of record, and hereby respectfully moves this Board to Reconsider its Order denying
Petitioners’ Motion for Summary Judgment for modification of a solid waste management
facilitypermit and, in support thereof, statesas follows:
BACKGROUND
1.
On September 16, 2004, this Board issued an Order denying Petitioners’ Motion
for Summary Judgment.
2.
Specifically, this Board found that summary judgment was not appropriate after
concluding that the Village of Robbins’ siting approval granted to the facility at issue in 1993
constituted approval only ofa waste-to-energy facility, despite a Certification of Siting Approval
signed by the Mayor of the Village of Robbins and submitted to the Agency in 2003 that
unambiguously stated that the pollution control facility sited by the Village of Robbins on
February 9, 1993 was intended to serve at leastin part as a transfer station. R. 075.
3.
Furthermore, this Board failed to properly apply Section
39.2(e-5)
of the Illinois
Environmental Protection Act (Act) in this matter. If this Board had properly applied that
section, this Board would have found that Section
39.2(e-5)
requires (as a matter of law) that
Petitioners’ Motion for Summary Judgment be granted.
4.
For the reasons set forth herein, Petitioner respectfully requests that this Board
reconsider its September 16, 2004 Order and appropriately grant Petitioners’ Motion for
Summary Judgment.
ARGUMENT
I.
THIS BOARD SHOULD HAVE GiVEN DEFERENCE TO THE VILLAGE OF
ROBBINS’
CONCLUSION REGARDING THE SCOPE OF THE
SITING APPROVAL.
5.
Decisions regarding site location approval for pollution control facilities have
been vested by the legislature in the hands of local authorities.
See
415 ILCS 5/39.2;
E & E
Hauling, inc. v. Pollution Control Board,
107 ill.2d 33, 481 N.E.2d664 (1985).
6.
Consequently, a local siting authority’s decisions regarding siting approval
matters are given greaii deference, and are only reversed if those determinations are against the
manifest weight of the evidence.
See Land and Lakes Co. v. illinois Pollution Control Board,
319 Ill.App.3d 41, 743 N.E.2d 188 (3d Dist. 2000);
ConcernedAdjoining Owners v. Pollution
Control Board,
288 IlLApp.3d
565,680
N.E.2d 810(5th Dist. 1997);
Turlek v. Pollution Control
Board,
274 Ill.App.3d 244, 653 N.E.2d 1288 (1st Dist.
1995).
7.
In fact, in order to reverse a local siting authority’s determination regarding
matters re1atin~to siting approval, this Board or a reviewing court must find that the opposite
conclusion is clearly evident, plain or indisputable.
See Concerned Adjoining Owners,
288
I11.App.3d
565,
680 N.E.2d 810;
Tune/c,
274 Jll.App.3d 244,
653
N.E.2d 1288.
8.
Despitethe fact that as a matter oflaw, deference is required to be givento a local
siting authority, this Board provided absolutely no deference to the siting authority’s clear and
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unambiguous conclusion, through its Certification of Siting Approval, that the siting approval
previously granted by the Village ofRobbins encompassed approval ofa solid waste transfer.
9.
Instead, this Board completely disregarded the Village of Robbins’ unambiguous
Certification ofSiting Approval and, instead, relied exclusively on the ordinance adopted by the
Village in 1993.
10.
It is well-settled that the local siting authority, and the local siting authority alone,
is responsible for determining the scope of siting approval granted to a pollution control facility.
See Saline CountyLandfill, Inc. v. Illinois Environmental Protection Agency,
PCB 02-108 (May
16, 2002).
11.
In fact, the Illinois Supreme Court has made it clear that “the legislature intended
to invest local governments with the right to assess not merely the location ofproposed facilities,
but also the impact of alterations in the scope and nature of previously permitted facilities.”
M.I.G.
Investments, Inc. v. Environmental Protection Agency,
122 ll1.2d 392, 523 N.E.2d 1
(1988) (emphasis added).
12.
In this case, the Village of Robbins has made clear in more than one manner that
the siting approval it granted in 1993 was broad enough to cover Allied’s and the Village of
Robbins’ current waste transfer proposal. R. 075.
13.
That conclusion should be given greatweight, and not set aside unless it is against
the manifest weight ofthe evidence, which is clearly not the case in the present matter.
II.
THE PETITIONERS PROVIDED ADEQUATE PROOF OF LOCAL SITING
APPROVAL TO THE AGENCY AND THIS BOARD IN THE FORM OF PERMITS
ISSUED TO THE FACILITY.
14.
Section 39.2(c) ofthe Illinois Environmental Protection Act provides in pertinent
part:
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permit for the development or construction of a new pollution control
facility
may be granted by the Agency unless the applicant submits proofto the
Agency that the location ofthe facility has been approved by the County Board of
the county if in an unincorporated area,
or the
governing body ofthe municipality
when in an incorporated area, in which the facility is to be located in accordance
with Section 39.2 ofthis Act.
415 ILCS 5/39(c) (emphasis added).
15.
Therefore, pursuant to Section 39(c) of the Act, a permit. must be granted if the
applicant submits proofto the Agency that the local siting authority has approved the facility in
accordancewith Section 39.2 ofthe Act.
See
415 ILCS
5/39(c).
16.
In this case, Allied has submitted ample proof in the form of permit, previously
issued by the Agency, all of which establish that the facility approved by the local siting
authority in 1993 included a waste transfer station component.
17.
In fact, the operating permit previously issued by the IEPA specifically provide
that the facility shall participate in comprehensive waste processing efforts by collecting,
recycling and diverting waste, as well as processing waste for removal of certain materials for
recycling or off-site disposal. See IEPA Operating Permit No. I997-072-OP, p. 17 (June 2,
1997).
18.
Additionally, the original and supplemental permits previously issued to Robbins
Resource specifically provide that the pollution control facility was allowed to receive waste,
handle waste, store waste for certain periods of time, screen, separate, segregate and sort waste
materials, transfer waste under certain circumstances and conditions, and process and convert
waste materials to different forms. See Permit Nos. 1997-072-OP (June 2, 1997); 1998-030-DE
(April 6, 1998); 1998-078-DE (June 3, 1998); 1998-208-OP/SUP (July 31, 1998); 1998-314-
DE/SUP (June 10, 1999); 1998-313-DE/SUP (Oct. 14, 1999).
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19.
Based on the permits issued to the facility, the Agency specifically permitted
transfer station functions, including waste receiving, temporary storage, consolidation and
transfer.
20.
These permitted activities clearly comport with the Act’s definition of “transfer
station,” which is a “a site or facility that accepts waste for temporary storage or consolidation
and further transfer to a waste disposal, treatment or storage facility.” 415 ILCS 5/3.500.
21.
Even this Board acknowledges that those permits allow for waste transfer
activities, as the Board specifically stated in its Order that “the permits indicate that the sited
waste-to-energy facility did have transfer station components...” (Board Order, p. 8) (emphasis
added).
22.
The permits already issued by the Agency for this facility then explicitly establish
that the facility was sited to operate, in part, as a transfer station.
23.
If that had not been the case, the Agency would have been without authority,
pursuant to Section 39(c), to issue the permits identified above in the first instance, all ofwhich
again specifically provide for and permit waste transfer operations at the facility.
24.
Consequently, the contents of the permits issued to this facility in and of
themselves provide ample proofthat the facility was property permitted to act as a waste transfer
station, and this Board’s finding to the contrary was simply incorrect.
Ill.
THE PETITIONERS PROVIDED ADEQUATE
PROOF OF LOCAL SITING
APPROVAL TO THE AGENCY AND THIS BOARD IN THE FORM OF THE
CERTIFICATION OF SITING APPROVAL.
25.
Tn addition to the permits issued to the facility, which clearly establish that the
facility was sited to include a waste transfer station component, the Petitioners have also
provided unrefated evidence that the facility was clearly sited as a waste transfer station through
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the Certification of Siting Approval, signed by the very same mayor who was in office when the
original siting approvalwas grantedto the facility in 1993.
26.
That Certification clearly and unambiguously establishes that the siting approval
in 1993 was for a waste transfer station. R. 75.
27.
The Board, however, seems to dismiss the Certificate as if it is inadequate proof
of local siting approval and, instead, relied solely on the Ordinance passed by the Village of
Robbins to somehow conclude that the facility would not be operated as a waste transfer station.
28.
In fact, this Board stated that the Certification should be given “less weight” than
the Ordinance, which this Board concludes is the “best evidence ofthe Village’s intent regarding
the type offacility it sited.” (Board Order, p. 8).
29.
However, the Board had no basis upon which to conclude that the Ordinance was
somehow superior proofofthe Village’s intent, while the Certificate was somehow inadequate or
improper proofoflocal siting approval.
30.
In fact, the plain language of Section 39(c) does not identify any specific type of
proof that is required to ~showlocal siting approval, but merely indicates that “proof’ of siting
approval must be provided.
See
415 ILCS
5/39(c).
31.
It is well-settled that courts must look to the language ofa statute to ascertain the
intent of the legislature.
See City of East Peoria v. illinois Pollution Control Board,
117
IILApp.3d 673, 452 N.E.2d 1378, 1382 (3d Dist. 1983).
32.
In this case, the language of the statute clearly establishes that “proof’ of lOcal
siting approval is required, and does not limit the types of proof that can be submitted to the
Agency to make this demonstration.
See
415 ILCS
5/39(c).
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33.
Consequently, it was inappropriate for this Board to conclude that the Ordinance
somehow served as superior proof of the Village of Robbins’ intent, especially in light of the
unambiguous Certification filed by the Village.
IV.
THE PETiTIONERS
PROVIDED ADEQUATE PROOF OF LOCAL SITING
APPROVAL TO THE AGENCY AND THIS
BOARD IN THE FORM OF THE
SITING AUTHORITY AGREEMENT.
34.
In addition to the substantial sources of proof identified above, Petitioners also
presented ample proof, through the Siting Authority Agreement entered into between the Village
ofRobbins and Allied, that this
facility
was sited in 1993 to performtransfer station activities.
35.
The Siting Authority Agreement, entered into on February 13, 2003, specifically
sets forth that Allied be allowedto usethe formerly approved pollution control facility “for waste
receipt and handling, waste processing, waste solidification, waste load consolidation and to
operate as a solid waste transfer station (for both non-hazardous special waste and Municipal
Solid Waste).” (R.076).
36.
The agreement also memorializes that the siting approval previously granted to
the pollution control facility by the Village of Robbins is “sufficiently broad to cover the
proposed use of the Property and the Facility, and that the present proposed use can be
undertaken without the necessity ofadditional local sitingapproval procedures.” (R.076).
37.
As such, that agreement makes clear that the local siting approval granted to the
facility in 1993 included transfer station components.
38.
However, even if it is somehow found that the 1993 siting approval did not
encompass transfer station activities (which is clearly not the case), the Siting Authority
Agreement itselfprovides proofthat the facility was properly sitedpursuant to Section 39.2(e-5).
39.
Section
39.2(e-5)
ofthe Act provides in pertinent part:
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Siting
approval
obtained pursuant to this Section is transferable and may be
transferred to a subsequent owner or operator. In the event that
siting approval
has been transferred to a subsequent owner or operator, that subsequent owner or
operator assumes and takes subject to any and all conditions imposed upon the
prior owner or operator by the county board of the county
or
governing body of
the municipality pursuant to subsection (e). However, any such conditions
imposed pursuant to this
Section
may he
modified by agreement between the
subsequent owner or operator and
the appropriate county board or
governing
body.
415 ILCS
5/39.2(e-5)
(emphasis added).
40.
In this case, Allied and the Village of Robbins have done precisely what is
contemplated in Section 39.2(e-5), as the Village of Robbins has entered into a Siting Authority
Agreement with Allied (the subsequent operator ofthe pollution control facility), to modify (as
necessary) any conditions previously imposed upon the pollution control facility, and to
specifically allow the operator to now operate the facility primarily as a transfer station.
41.
Pursuant to section
39.2(e-5)
the Village ofRobbins, as the local siting authority,
had absolute power and authority to do exactly what it did in its agreement with Allied, and to
allow the pollution control facility to primarily act as a transfer station. (R. 076-80).
42.
Consequently, even ifthis Board finds inadequate proofof siting approval in the
form of the Agency permits already issued to this facility and the Certification of Siting
Approval signed by the Mayor ofthe Village ofRobbins, the Siting Authority Agreement in and
of itself provides ample evidence that this facility was approved in accordance with Section
39.2(e-5)
ofthe Act.
43.
In its Order, this Board improperly refused to apply Section
39.2(e-5)
to this case,
finding that “to allow the use of Section
39.2(e-5)
in this context would deprive members ofthe
public an opportunity to participate in the local siting process.” (Board Order, p. 9).
44.
However, this
Board’s
finding is incorrect because the public was able to
participate in the local siting process when the facility was sited in 1993.
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45.
Furthermore, the public had a more recent opportunity to provide opinions about
this facility in local zoning hearings that took place to have the area surrounding the facility
zoned PRR and Industrial. R. 162, 194.
46.
Despite the public’s opportunity to voice their opposition to this facility at the
local zoning hearings, the public apparently did not do so.
47.
Consequently, this Board’s concerns over the public’s opportunity to participate in
the approval ofthis facility are unfounded; and then no reason exists as to why Section 39.2(e-5)
should not apply in this case.
V.
THE ORDINANCE PASSED BY THE VILLAGE OF ROBBINS DOES NOT
ESTABLISH.
THAT THE FACILITY WAS TO ACT ONLY AS AN
INCINERATOR, AND
NOT AS A
TRANSFER STATION.
48.
As explained above, this Board relied exclusively on an Ordinance passed by the
Village of Robbins regarding siting of the facility in 1993 to support its conclusion that the
facility sited was not a transfer station.
49.
However, a review of the Ordinance (which this Board exclusively relied upon)
clearly does not support the Board’s conclusionthat the facility was “clearly” not approved to act
as a
transfer station.
50.
In fact, the Ordinance never defines the facility as anything other than a “regional
pollution control facility.” It 65-70.
51.
Although the Ordinance does contain one reference to a “waste-to-energy facility”
and a reference to the fact that the facility would be generating electricity from waste (R. 69-70),
nowhere in the Ordinance does the Village of Robbins indicate that the facility was to be
operated solely for these functions, nor does
the Ordinance specifically provide that the facility is
not to act as a transfer station.
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52.
Rather, this Board simply read into the Ordinance such limitations, which is
improper because the Board was required to examine the “plain
language” ofthe Ordinance.
See
City ofEast Peoria,
117 Ill.App.3d 673,
452 N.E.2d 1378, 1382.
53.
Furthermore, there is no such facility as a “waste-to-energy” facility, as neither
that term, nor any other term encompassing waste-to-energy activities (including “incinerator”),
is defmed anywhere in the Act. See 415 ILCS 5/3 et seq.
54.
Therefore, in 1993, the Village ofRobbins could not have been siting a “waste-to-
energy facility” but was, instead, siting a “pollution control facility,” the definition of which
includes a transfer station. See 415 ILCS 5/3.330(a).
55.
Even if the Village of Robbins had been siting a waste-to-energy facility in 1993,
that does not change the conclusion that the siting specifically encompassed transfer station
activities because a waste-to-energy facility, otherwise known as an incinerator, is inherently a
transfer station with an
incineration component. The
only difference between a traditional
transfer station and an incinerator is the end method of disposal; both are “pollution control
facilities” as defined by the Act and included within the 1993 Ordinance granting siting
approval. See 415 ILCS 5/3.330(a).
56.
Unlike almost every other type of “pollution control facility”, neither transfer
stations nor incinerators are involved in the “disposal” ofwaste. See 415 ILCS 5/3.185 (defining
“disposal” as “the discharge, deposit, injection, dumping, spilling, leaking or placing of any
waste or hazardous waste into or on any land or water or into any well so that such waste or
hazardous waste or any constituent thereof may enter the environment or be emitted into the air
ordischarged into any waters, including ground waters”).
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57.
Instead,
incinerators act
much like transfer station, in that they separate waste and
recyclables, consolidate the waste (into ash/scrubber residue), and then transfer the waste to a
landfill for disposal.
58.
In
fact, during the years that the Robbins facility was operated as an incinerator,
approximately
45
of its incoming waste was transferred out ofthe facility as recyclables, waste
and ash.
59.
As such, the sited facility acted in large part as a transfer station.
60.
Consequently, even if the facility sited by the Village ofRobbins was specifically
identified as an incinerator (which is not the case), that facility would have waste transfer
components, as this Board specifically found in its Order. (Order, p. 8).
61.
As a result, allowing this facility to perform transfer station activities would not in
any way constitute a “wholesale change in the very type offacility contemplated.” (Order, p. 8).
Ill.
SECTION
39.2(E-5)
OF THE ACT CLEARLY REQUIRES MODIFICATION OF THE
PERMIT.
62.
Section 39(c) ofthe Act provides that a permit shall be granted if an applicant
submits proof of approval of the facility by the governing body of the municipality that is in
accordance with Section 39.2 ofthe Act. See 415 ILCS
5/39(c).
63.
In this case, the Village ofRobbins has provided clear proofthat the facility was
sited in accordance with Section 3 9.2(a) of the Act through the Certification of Siting Approval
signed by the Village. of Robbins.
64.
Nevertheless, even if this Board somehowfinds that the Village’s approval did not
specifically allow the facility to act as a transfer station, the Village has provided ample proof
that, to the extent evenrelevant, any “conditions” previously imposed on the property have been
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11
“modified” in accordance with Section
39.2(e-5),
so that the facility may now serve primarily as
a waste transfer station.
65.
Section 39.2(e-5) ofthe Act provides in pertinent part:
Siting approval obtained pursuant to this Section is transferable and may be
transferred to a subsequent owner or operator. In the event that siting approval
has been transferred to a subsequent owner or operator, that subsequent owner or
operator assumes and takes subject to any and all conditions imposed upon the
prior owner or operator by the county board ofthe county or governing body of
the municipality pursuant to
subsection (e).
However, any such conditions
imposed pursuant
to
this
Section
may
be modified by agreement between the
subsequent owner or operator
and the appropriate county board
or
governing
body.
415 ILCS
5/39.2(e-5)
(emphasis added).
66.
In this case, Allied and the Village of Robbins have done precisely what is
contemplated in and allowed by Section 39.2(e-5) by entering into a Siting Authority Agreement,
which specifically provides that Allied be allowed to use the formerly approved pollution control
facility as a waste transfer station. R. 076.
67.
As explicitly provided for in section
39.2(e-5)
of the Act, the Village of Robbins
was specifically authorized to enter into the Siting Authority Agreement with Allied, the
subsequent operator ofthe pollution control facility, to modify any and all conditions imposed on
the previously approved pollution control facility, as the Village ofRobbins has properly done in
this case.
68.
Pursuant
to the
plain language ofsection
39.2(e-5),
it is the siting authority that
has the sole power and responsibility to modify any terms and conditions of original siting
approval with a subsequent owner of a pollution control facility, which, again, is exactly what
the Village of Robbins did through its agreement with Allied, which specifically provides that
Allied may nowuse the pollution control facilityprimarily as a transfer station. it 076-80.
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69.
There can be no dispute that section
39.2(e-5)
governs the circumstances of this
case, and requires, as a matter of law, that Petitioner’s permit be modified because siting
approval ofthe subjectpollution control facility has been transferred to a newentity and that new
entity has entered into an agreement with the siting authority to operate as a transfer station.
70.
This is clearly a situation contemplated by section
39.2(e-5),
and, thus, section
39.2(e-5)
requires (as a matter of law) the modification requested by Petitioner Allied and
expressly agreed to by the Village ofRobbins, the local siting authority.
71.
Despite the clear application of Section 39.2(e-5) to the facts of this case, this
Board improperly refused to apply that section, finding that “to allow the use of Section 39.2(e-
5)
in this context would deprive members of the public an opportunity to participate in the local
siting process.” (Board Order, p. 9).
72.
In so finding, this Board simply chose not to apply the law as written, which is
clearly improper.
73.
As a result, this
Board should reconsider its Order in this case and should grant
Petitioners’ Motion for Summary Judgment.
WHEREFORE, the Petitioner, VILLAGE OF ROBBINS. respectfully requests that this
Honorable Board reconsider the Order it entered on September 16, 2004 and grant Petitioners’
Motion for Summary Judgment.
Dated:
IS7
,
2004
Respectfully Submitted,
VILLAGE OF ROBBINS,
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William Mansker, Attorney for the Village of
Robbins
1,,
William Mansker
Village ofRobbins
3327 W. 137th Street
Robbins, Illinois 60472
Phone: 708-385-8940
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