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City of Rockford v. Pollution Control Bd

OPINION FILED JUNE 27, 1984.

THE CITY OF ROCKFORD, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition for review of order of Pollution Control Board.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

We review the order of the Illinois Pollution Control Board (PCB) approving the location of a site for a liquid industrial waste regional pollution control facility in Rockford to be constructed by Frink's Industrial Waste, Inc. (Frink's).

The city council of Rockford, as the governing body of the municipality, charged by statute with determining site location suitability (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2), denied the Frink's application. The PCB on review (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1040(a)) granted approval. Rockford appeals.

The proposed facility is designed to treat four types of liquid waste: alkaline water, coolant and cutting oils, chromium and zinc phosphate effluents, and solvent-water mixtures.

Frink's proposes to collect from industries generating these wastes in the Rockford area and to carry them to its facility in 5,000 gallon capacity trucks. These trucks would unload their contents into covered tanks of various sizes at the proposed facility. From these tanks, Frink's would treat the wastes, reclaim some chemicals, discharge waste water into the Rockford Sanitary District sewers, and haul sludges to a landfill.

Frink's proposes to locate the facility in South By-Pass Industrial Park, at the southwest corner of Kishwaukee Street and Boeing Drive, in the city of Rockford, Illinois. Kishwaukee Street is a fourlane highway running north and south. Boeing Drive runs east and west, and serves as access to the Industrial Park. Several industrial concerns are already located in the Industrial Park, including one firm that processes industrial oils by filtration.

Immediately to the north of South By-Pass Industrial Park is a four-lane, east-west highway known as Route 194 By-Pass, U.S. 20, which is elevated as it crosses Kishwaukee Street. North of Route 194 and west of Kishwaukee Street is the Rockford Sanitary District Treatment Plant and an industrial subdivision fronting on Kishwaukee Street. Riverdahl School is approximately 2,000 feet east of this subdivision across Kishwaukee Street and elevated Route 194. South of Route 194 and directly east of South By-Pass Industrial Park is a largely vacant tract owned by the Rockford Local Development Corporation. Sundstrand Corporation has recently built an industrial building on one part of the Local Development Corporation tract, along the east side of Kishwaukee Street.

I

Rockford first argues that the PCB erroneously reweighed the evidence and substituted its findings for those of the governing body of the municipality, although the contrary decision of the municipality was supported by sufficient evidence.

• 1 We first address the standard of review applicable to the proceedings before the city council. Rockford agrees that the manifest weight of the evidence standard applies, and contends that the council's decision denying site approval was not against the manifest weight of the evidence and should have been approved on review. This court has held that the manifest weight of the evidence standard applies to the review of site location decisions made by a governing body under section 39.2 of the Environmental Protection Act. Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2. See E & E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App.3d 586, 608, appeal allowed.

Frink's contends that the PCB decision overruling Rockford's denial of site location approval was proper under the manifest weight of the evidence standard. It argues, however, that E & E Hauling is wrongly decided on this issue, and that the manifest weight of the evidence standard should only be applied to an administrative agency with recognized pollution control expertise, and not to the city council. *fn1 It reasons that the declared purposes of the Environmental Protection Act are to establish ecologically sound regional pollution control facilities to ease the recognized difficulty of disposing of refuse and to establish a unified statewide program for environmental protection. See Ill. Rev. Stat. 1983, ch. 111 1/2, pars. 1002(a)(ii), 1020(b); see also Carlson v. Village of Worth (1975), 62 Ill.2d 406.

Pending supreme court review, we adhere to the manifest weight standard.

Our conclusion is supported by an analysis of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1001 et seq.). Section 3(a) of the Act defines "Agency" as the Environmental Protection Agency and defines "Board" as the Pollution Control Board. (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1003(a), (c).) Section 39 deals with the issuance of permits. (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.) Section 39(a) allows the Board to require permits and requires the agency to issue permits upon proof that the applicant has complied with the Act. (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039(a).) Section 39(c) requires the applicant who proposes to develop or construct a new regional pollution control facility first to obtain proof that the local government entity has approved the site location in accordance with section 39.2 of the act. (Ill. Rev. Stat. 1983, ch. 111 1/2, pars. 1039(c), 1039.2.) Section 39.2, at issue in this case, requires the local governing entity to approve site location suitability considering six listed criteria which together have the effect of making a uniform set of zoning standards for the location of regional pollution control facilities throughout the State. Houlihan & Flynn, The Siting of Sanitary Landfills and Other Waste Management Facilities — The Legislature Acts, 70 Ill. B.J. 434, 437 (1982).

• 2 Comparing section 39(a), granting the agency general authority to issue permits, with section 39.2, granting the local governmental entity authority to approve site location, it appears that the local governmental entity has been given the adjudicatory function otherwise located in the agency itself. The fact that the statute contains parallel review procedures in section 40 (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1040, providing for Board review of Agency denial of permits), and in section 40.1 (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1040.1, providing for Board review of local governmental entity denial of site location approval), reinforces the view that in site location decisions the local governmental entity performs an adjudicatory function. Adjudicatory decisions made by an administrative agency are reviewed under a ...


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