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07/26/95 MICHAEL TURLEK v. ILLINOIS POLLUTION

July 26, 1995

MICHAEL TURLEK, LILLIAN SMEJKAL, JOHN LATHROP, KAY KULAGA, ALICE ZEMAN, CITIZENS FOR A BETTER ENVIRONMENT, PATRICIA J. BARTLEMAN, NANCI KATZ AND MICHELLE SCHMITS, PETITIONERS-APPELLANTS,
v.
ILLINOIS POLLUTION CONTROL BOARD, VILLAGE OF SUMMIT AND WEST SUBURBAN RECYCLING AND ENERGY CENTER, INC., RESPONDENTS-APPELLEES.



Petition for Review of the Order of the Pollution Control Board.

As Corrected August 3, 1995.

Presiding Justice Greiman delivered the opinion of the court: Rizzi, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Petitioners filed petitions with the Illinois Pollution Control Board (the Board) challenging the Village of Summit's (Summit) December 6, 1993 decision granting local siting approval to West Suburban Recycling Center, Inc. (WSREC) to construct an incinerator in Summit, Illinois. In an opinion and order dated May 5, 1994, the Board affirmed Summit's approval of WSREC's siting application, and denied petitioners' motions to reconsider.

On appeal, petitioners raise issues as to whether the Board erred in determining: (1) Summit had jurisdiction to consider WSREC's 1993 application; (2) the proposed incinerator was necessary to serve the intended area's waste disposal needs; (3) the proposed incinerator satisfied the Environmental Protection Agency's (EPA) flood-proofing criterion; and (4) the proper legal standard was applied in denying petitioners' motions for reconsideration. We affirm the Board's decision.

WSREC filed an application with Summit seeking siting approval for a municipal waste-to-energy facility. After public hearings, Summitgranted WSREC siting approval on October 19, 1992. On February 25, 1993, the Board reversed Summit's approval citing Summit's failure to make WSREC's application available to the public.

The Board remanded the siting process to Summit with instructions that WSREC could reinstitute its application without further amendment within 35 days. On March 26, 1993, WSREC appealed the Board's order to this court and filed with the Board a motion to stay its order pending this court's ruling. The Board denied WSREC's motion to stay on April 8, 1993.

On June 8, 1993, WSREC mailed legal notices to property owners in the Summit area indicating its intent to file a new application with Summit for a larger, but substantially similar, facility located on the same property. WSREC published this notice on June 10, 1993.

On June 14, 1993, this court dismissed WSREC's appeal of the Board's February 1993 order for lack of jurisdiction, the order not being final. On June 25, 1993, WSREC filed its new application, for the larger facility, with Summit. Public hearings were held on September 28 and 29, 1993, after which Summit approved WSREC's application on December 6, 1993.

On January 7 and 10, 1994, petitioners filed separate petitions for review of Summit's decision with the Board. A hearing on the consolidated petitions was held on March 1, 1994, and the Board affirmed Summit's decision granting WSREC siting approval on May 5, 1994. On June 7 and 9, 1994, petitioners filed separate motions for reconsideration of the Board's May 5th order, which were denied on July 21, 1994. Petitioners appealed the Board's order to this court on August 25, 1994.

Petitioners first argue that Summit lacked jurisdiction to entertain WSREC's 1993 application. Summit's authority to consider a siting request for a regional pollution control facility is governed exclusively under 415 ILCS 5/39.2. Section 39.2 prohibits an applicant from filing a request for siting approval which is substantially the same as a request which was disapproved pursuant to a finding against the applicant under one of nine statutory criteria *fn1 within the preceding two years. (415 ILCS 5/39.2(m). (West 1992.) Petitioners argue that WSREC filed its 1993 request while its "substantially similar" 1992 request wasstill "pending" in violation of section 39.2, thereby preventing Summit from considering the second, 1993 application.

WSREC's 1992 application was approved, not disapproved, by Summit. The prohibition upon which petitioners rely relates to subsequent applications following a disapproved application. The Board reversed Summit's approval because the Village violated the procedural requirement of adequate public notice. Even assuming that Summit had denied WSREC's 1992 application on the basis of inadequate public notice, the quality of public notice is not one of the nine substantive criteria contained in subsection (a) of section 39.2 which preclude consideration of a second application.

Petitioners cite Laidlaw Waste Systems v. Pollution Control Bd. (1992), 230 Ill. App. 3d 132, 595 N.E.2d 600, 172 Ill. Dec. 239, as additional support to their jurisdictional challenge. In Laidlaw, a waste company filed a second application within two years of a substantially similar application rejected by Madison County "for the reason that the applicant had failed to satisfy several of the criteria contained in subsection (a) of Section 39.2." ( Laidlaw Waste Systems, 230 Ill. App. 3d at 133.) Thus, while petitioners are correct in noting that Laidlaw and section 39.2(m) prohibit a refiling within two years following disapproval of a substantially similar application, these are not the facts before this court. WSREC's 1992 application was approved, and reversed by the Board on grounds unrelated to those contained in section 39.2(a). There is additional doubt as to ...


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