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                                         Appellate Court                          Date: 2019.04.16
                                                                                  08:17:45 -05'00'



                 Will County v. Village of Rockdale, 2018 IL App (3d) 160463



Appellate Court           WILL COUNTY, Petitioner, v. THE VILLAGE OF ROCKDALE;
Caption                   THE BOARD OF TRUSTEES OF THE VILLAGE OF ROCKDALE;
                          ENVIRONMENTAL RECYCLING AND DISPOSAL SERVICES,
                          INC.; and THE ILLINOIS POLLUTION CONTROL BOARD,
                          Respondents.–WASTE MANAGEMENT OF ILLINOIS, INC.,
                          Petitioner, v. THE VILLAGE OF ROCKDALE; THE BOARD OF
                          TRUSTEES         OF   THE   VILLAGE   OF   ROCKDALE;
                          ENVIRONMENTAL RECYCLING AND DISPOSAL SERVICES,
                          INC.; and THE ILLINOIS POLLUTION CONTROL BOARD,
                          Respondents.



District & No.            Third District
                          Docket Nos. 3-16-0463, 3-16-0496 cons.



Filed                     July 5, 2018
Modified upon denial
of rehearing              November 27, 2018



Decision Under            Petition for review of order of Illinois Pollution Control Board, Nos.
Review                    16-54, 16-56.



Judgment                  Affirmed.


Counsel on                Joshua G. Vincent, Charles F. Helsten, and Peggy L. Crane, of
Appeal                    Hinshaw & Culbertson LLP, of Chicago, for petitioner Will County.
                              Donald J. Moran and Stan C. Sneeringer, of Pedersen & Houpt, P.C.,
                              of Chicago, for petitioner Waste Management of Illinois, Inc.

                              Dennis G. Walsh, of Klein, Thorpe & Jenkins, Ltd., of Chicago, and
                              Michael R. Stiff, of Spesia & Ayers, of Joliet, for respondents Village
                              of Rockdale and the Board of Trustees of the Village of Rockdale.

                              George Mueller, of Mueller Anderson, P.C., of Ottawa, for respondent
                              Environmental Recycling and Disposal Services, Inc.

                              Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                              Solicitor General, and Valerie Quinn, Assistant Attorney General, of
                              counsel), for respondent Illinois Pollution Control Board.



     Panel                    JUSTICE McDADE delivered the judgment of the court, with
                              opinion.
                              Justice Schmidt concurred in the judgment and opinion.
                              Justice Wright dissented, with opinion.


                                                OPINION

¶1          Respondent Environmental Recycling and Disposal Services, Inc. (ERDS), filed a siting
       application seeking approval for a pollution control transfer station. A hearing on the
       application was held, and the hearing officer found that ERDS failed to meet certain statutory
       criteria. Subsequently, the Board of Trustees of the Village of Rockdale (Village Board)
       conditionally approved the application. Petitioners Will County and Waste Management of
       Illinois, Inc. (WMI), filed separate petitions requesting the Illinois Pollution Control Board
       (Pollution Board) to review the Village Board’s decision. The petitioners argued that (1) the
       Village Board lacked jurisdiction and (2) certain statutory criteria under section 39.2(a) were
       not met. The Pollution Board found that (1) the Village Board had jurisdiction to review the
       siting application, (2) the amendment to the application was proper, and (3) the Village
       Board’s decision on criteria (i), (ii), (v), and (viii) was not against the manifest weight of the
       evidence. Petitioners appealed. We affirm.

¶2                                                 FACTS
¶3          Respondent ERDS operated a refuse hauling business on Moen Avenue in Rockdale,
       Illinois, which had been in operation for 15 years. It filed a request for siting approval to have
       a pollution control transfer station in the same area. ERDS sent a notice of a public hearing to
       nearby landowners, public officials, and entities, including the General Assembly. It also
       published the notice in the Herald-News. The notice stated that ERDS had sought approval to
       site a transfer station on Moen Avenue. Specifically, the notice reads:

                                                   -2-
                  “NOTICE OF INTENT TO FILE A REQUEST FOR LOCAL SITING
             APPROVAL OF A NEW POLLUTION CONTROL FACILITY WITH THE
             VILLAGE OF ROCKDALE, ILLINOIS
                  YOU ARE HEREBY NOTIFIED THAT, pursuant to § 39.2(b) of the Illinois
             Environmental Protection Act (‘the Act’) 415 ILCS 5/39.2(b), the Applicant,
             Environmental Recycling and Disposal Services Inc., will file its Request for Siting
             Approval for a new pollution control facility, the Moen Transfer Station, with the
             Village of Rockdale, Illinois, 79 Moen Ave., Rockdale, Illinois, 60436, on Dec. 12,
             2014. In its request for siting approval, the Applicant will seek approval to site, permit,
             construct, develop and operate a transfer station as defined by Section 3.500 of the
             Illinois Environmental Protection Act (the ‘Act’) (415 ILCS 5/3.500), the Moen
             Transfer Station located generally north of the intersection of Moen Ave. and Gould
             Court, at 2277 Moen Ave., said location being in the Village of Rockdale, Illinois.
                  The proposed facility encompasses approximately 2.16 acres, and is legally
             described as follows:
                  Parcel 1: [legal description of the property]
                  Parcel 2: [legal description of the property]
                  Property address: 2277 Moen Avenue, Joliet, IL 60436
                  The proposed facility would be a non-hazardous transfer station which will accept
             non-hazardous waste for temporary storage, consolidation, and further transfer to a
             waste disposal/treatment facility. The Applicant will develop and operate the transfer
             station only as approved by the Illinois Environmental Protection Agency, other
             applicable regulatory agencies, and as authorized by applicable statutes and
             regulations. The waste accepted for transfer will be general municipal waste, landscape
             waste, recyclables and construction and demolition debris generated by residential,
             commercial and industrial sources. The facility proposes to handle an average 200 tons
             per day of solid waste. The facility will not accept liquid or hazardous waste. The
             facility is projected to have an operating life of at least 20 years.
                  The Applicant is Environmental Recycling and Disposal Services Inc., whose
             addresses are PO Box 675, Orland Park, Il. 60462, and 2277 Moen Ave., Rockdale, Il.
             60436.
                  On Dec. 12, 2014, the Applicant will file with the Village of Rockdale, Illinois, its
             Request for Siting Approval. The request will include the substance of the Applicant’s
             proposal and supporting documents.
                  The Request filed by the Applicants with the Rockdale Village Clerk will be
             available for your inspection in the Rockdale Village Clerk’s Office located at 79 Moen
             Ave., Rockdale, Illinois, 60438, during normal business hours daily, not including
             weekends or holidays. Copies of the request or any part thereof will be available from
             the Rockdale Village Clerk upon payment of the actual cost of reproduction, as
             outlined in the Illinois Freedom of Information Act (5 ILCS 140/1 et seq.).”
¶4       In October 2014, ERDS and Will County entered into a host agreement. In December,
     ERDS filed the siting application. In the application, ERDS stated that the service area for the
     transfer station includes the northern and western portions of Will County and other adjoining
     communities. ERDS estimated its service area based on the service area for Prairie View

                                                  -3-
     Recycling and Disposal Facility (Prairie View RDF) because it is the primary disposal option
     for Will County residents and businesses. Relying on the generation and disposal volumes for
     Will, Kendall, and Grundy Counties, the total population growth in the service area is expected
     to increase by 62% by 2040.
¶5       There are three landfills in the service area: Laraway Recycling and Disposal Facility
     (Laraway RDF), Environtech Landfill, and Prairie View RDF. The Laraway RDF did not
     accept municipal solid waste, and Environtech Landfill had about one year of life remaining in
     its operations. Will County’s solid waste management plan (SWMP) and the Prairie View
     RDF host agreement state that “as much waste as practical” in the service area should be
     disposed at Prairie View RDF. In one day, Prairie View RDF received 188 loads of disposable
     waste, 111 of which were loads from transfer trailers. The amount of waste disposed at Prairie
     View RDF remained consistent from 2007 to 2011 but decreased by 30% from 2011 to 2013.
¶6       There are three transfer stations located in the service area: Rockdale Transfer Station,
     Citiwaste Transfer Station (Citiwaste), and Joliet Transfer Station. The Rockdale Transfer
     Station is located 0.3 miles from the proposed facility and takes only recyclables at around 200
     tons per day (TPD). Citiwaste Transfer Station is 4.5 miles east of the proposed facility;
     receives only clean construction and demolition debris, landscape waste, and recyclables; and
     takes around 100 TPD. Joliet Transfer Station is 1.25 miles from the proposed facility. The
     station was accepting between 1000 to 1300 TPD in the past but was currently accepting
     between 2400 to 3700 TPD. Joliet Transfer Station is the only municipal solid waste transfer
     station in the service area. An overflow of waste on the tipping floor at the beginning of the
     operation day had been observed at the station. Also, the station had been observed cutting off
     trucks waiting in line at the end of the day, and consequently, those trucks are not allowed to
     dump. There was a capacity shortfall of between 853 to 2046 TPD in the service area because
     the Joliet station was currently generating more than double the amount of its average volume.
     The shortfall was based on the difference between the Joliet station’s current waste acceptance
     and its waste acceptance in prior years. It also had been observed to be operating beyond
     capacity.
¶7       The proposed location for the facility is not in a 100-year floodplain and has been operating
     as a refuse hauling company since 1999. There are no wetlands, archaeological or historical
     sites, presence of any threatened or endangered species, or wild or scenic rivers in the vicinity.
     The proposed facility is an 8000-square-foot transfer station with an approximately
     6300-square-foot tipping floor. The building will have a drive-through loading pit and will
     include a scale house and three stormwater detention ponds. The trucks will have access to the
     proposed facility through Moen Avenue and will have two lanes of traffic. Collection trucks
     will enter the site and proceed to the scale house to be weighed. Afterward, collection trucks
     will proceed to unload in the transfer station or wait in the queuing area where the truck will be
     notified when it can proceed to the unloading area. Two trucks can unload at the same time.
     Also, transfer trailers will enter the site and wait in the queuing area until they can proceed to
     the building.
¶8       The surface water management system is designed to control and manage runoff from
     developed areas for a 25-year, 24-hour storm event; manage a 100-year, 24-hour storm event;
     and control discharge from a 2-year and 100-year critical duration storm event. The plan will
     “improve the quality of stormwater runoff” from the proposed facility. All detention ponds
     have small outlet orifices, and the captured water takes over three days to be fully released

                                                 -4-
       from the detention ponds. All stormwater from the site drains to one pond equipped with a
       discharge pipe and a shut-off valve that can be closed in case of a spill at the site. The discharge
       pipe directs the water into a ditch on Moen Avenue that carries the water through underground
       drainage ways to the Des Plaines River. The drainage system is designed to meet Illinois and
       Will County requirements. The stormwater system will comply with the Will County
       Stormwater Management Ordinance (Stormwater Ordinance), including keeping peak
       detention water surface elevation below floor elevation. In particular, detention pond 1’s
       “initial” floor elevation level was 571 feet mean sea level (msl) and its maximum floor
       elevation was 578 feet msl. Detention pond 1’s peak elevation level was 577.93 feet msl for
       100-year frequency and 573.06 feet msl for 2-year frequency.
¶9         The tipping floor and barrier walls will be cleaned with a pressure washer as needed and
       will be swept at least once every 24 hours. A fence will surround the property to control litter,
       and tarps will be used on loads. All roads and parking areas will be paved to control dust and
       mud. The site can accommodate up to 14 collection vehicles at a time, which will prevent
       backup onto Moen Avenue or on-site traffic. It will take about 5 minutes for a collection truck
       to enter the facility, dispose the waste, and exit the facility and take about 15 minutes to load a
       transfer trailer. Attached to the application are full-size drawings of the proposed facility. The
       map of the proposed facility depicts traffic arrows and stop signs on the roadway to guide the
       trucks through the facility.
¶ 10       The proposed facility includes design and operational features intended to minimize the
       danger to the surrounding area from fire, spills, or other operational accidents. The incident
       prevention and response plan details fire, spill, and accident prevention and responses. The
       facility will have a safety officer, and the building is a “pre-engineered metal building”
       equipped with a sprinkler system. Employees will be trained, and equipment will be cleaned to
       remove any combustible waste. The facility will not accept liquid waste, and any liquid found
       on the tipping floor will be drained, processed, and discharged into a sewer system. No liquid
       from the tipping floor will be discharged into the stormwater management system. The
       proposed facility “may desire to accept more than 200 [TPD] of waste. The facility’s Host
       Agreement with Will County indicates that a fee will be paid to Will County for every ton of
       waste accepted over 600 [TPD].” ERDS explained that the proposed facility would increase
       competition, increase operational flexibility, increase transfer capacity, reduce environmental
       impacts, and create an economic benefit for the village and Will County.
¶ 11       In March 2015, a hearing was held. The Village Board received 21 public comments from
       various individuals and companies. ERDS filed an “ERRATA” that included new calculations
       and corrections to the siting application. The hearing officer determined that the ERRATA was
       an amendment of the application and granted WMI and Will County (collectively, petitioners)
       additional time to review the amendment.
¶ 12       John Hock, vice president of Civil & Engineering Consultants, Inc., testified on behalf of
       ERDS. Hock testified that there was a shortfall of 850 to 2000 TPD in transfer station capacity
       because Joliet Transfer Station’s maximum average volume was 1300 TPD and it was
       currently generating 2400 to 3700 TPD. Hock stated that he had observed haulers being “cut
       off at times when waiting in line at the end of the day and not allowed to dump” at other sites.
       The proposed facility and its longer operating hours would provide an option for haulers in the
       service area. Hock detailed that he had reviewed transfer stations outside of the service area
       and opined that no other transfer station took waste to Prairie View RDF on a regular basis. He

                                                    -5-
       stated that ERDS will prevent clogging by incorporating features in the pipes that prevent
       clogging, performing preventative cleaning, and designing the system so that it continues to
       work properly even if clogging occurs. If the drains were to clog in detention pond 1, for
       example, the water will continue to flow into the pond until it reaches a certain elevation level.
       At that point, the water will not be able to flow into the pond and will flow “over the top of the
       trench drain and go down to detention pond 2, which is where it’s intended to go to begin
       with.” He also stated that freeboard would be included above the detention ponds to prevent
       “the movement and potential splashing or blowing from wind.”
¶ 13       Hock also testified that 200 TPD is the “realistic initial volume” but that ERDS had the
       capacity to take more waste into its proposed facility:
                    “Q. Mr. Hock, is 600 tons per day the maximum amount of waste that the site is
                proposed to receive on a daily basis?
                    A. That is a throughput that we evaluated. We picked that number because it’s a
                number that’s in the host agreement with Will County that’s subject to fees, so it
                seemed like a logical thing [to] evaluate.
                    We did not specify an exact maximum. In Illinois the IEPA does not require you to
                do that. So we are asking for flexibility that virtually every other transfer station has,
                that we will—your maximum tonnage is really dictated by the operations and by the
                facility itself.
                    So as long as you can meet all of the criteria in terms of getting it in and out and not
                having the material on the floor at the end of the night and transferring it all within the
                building, that’s the criteria that is to be used.
                    I could—based on our evaluation there’s many scenarios that we could adequately
                accept more than 600 tons per day. We may never get there, but, for instance, if you
                were taking relatively small amounts per hour over a large number of hours you could
                potentially exceed 600 tons per day, and we could do it well within the operational and
                design constraints of the facility.
                                                       ***
                    Q. So in other words, what we have now established is the applicant is requesting
                this Village to approve a solid waste transfer station with no specific throughput
                capacity?
                    A. Correct, I thought I had been very clear on that.”
¶ 14       Hock modeled different traffic pattern scenarios with collection trucks and transfer trailers.
       In the models, Hock used ERDS’s longest trailer and then considered other larger trailers
       traveling through the facility. The models also included queuing of the trucks. However, Hock
       stated that queuing will not be necessary a majority of the time.
¶ 15       Hock testified that, in a higher throughput scenario, when 16 trucks could be trafficking the
       facility per hour, and even under 600 TPD, the facility would have 10 or fewer trucks moving
       through the facility at one time because it would take the trucks a relatively short period of
       time—six minutes—to enter, load/unload, and exit the facility. The proposed facility’s
       entrance is 65 feet, while the Rockdale Transfer Station is 55 feet. Hock compared the entrance
       turn at other transfer facilities and the entrance turn at the proposed facility and concluded that
       the comparison had shown that the turn into other transfer facilities was more narrow than at


                                                     -6-
       the proposed facility and, therefore, “the transfer trailers can readily make all the required turns
       at the Moen Transfer Station.”
¶ 16        Sheryl Smith, Kurt Nebel, and Andy Nickodem testified on behalf of WMI. Smith, an
       environmental consultant, opined that the proposed facility was not needed because (1) the
       Joliet Transfer Station had sufficient disposal capacity to meet the needs of Will County,
       (2) there was available capacity in or near Will County, (3) there were two transfer stations
       within 1.1 miles of the proposed facility, (4) transporting waste out of Will County to more
       distant landfills would be more expensive, and (5) Will County’s SWMP stated that transfer
       station development must occur in the northern and eastern parts of the county.
¶ 17        Nebel, a WMI employee, testified that, in 2014, the Joliet Transfer Station accepted
       between 852 and 1800 TPD. He stated that sometimes 30 loads of waste were left on the
       tipping floor and discharged loads were partially outside the building. He also stated that WMI
       entered into a hauling contract that would add about 150 TPD to the volume at the station.
¶ 18        Nickodem, a civil engineer specializing in the design of solid waste facilities, opined that
       the proposed facility did not provide sufficient space for traffic delivering to and leaving from
       the proposed facility. Nickodem did not believe there was enough available space for queuing
       trucks and stated that the site was small and very crowded. He also stated that the stormwater
       management plan lacked sufficient detail to determine if the plan was adequate.
¶ 19        Nickodem prepared a written report on the proposed facility. He used a program called
       AutoTrack to recreate the proposed facility and track the movement of the trucks through the
       facility. The sizes of the trucks were based on the designs given in the application. Nickodem
       concluded that the transfer truck “uses up almost the entire [65-foot] entrance” to enter the
       facility and that the trucks would have to make a perfect turn to enter. The entrance is so
       narrow that, if other trucks are exiting the facility, the transfer trailers have to wait on Moen
       Avenue until the entrance is clear to enter the facility. This will cause potential traffic backups
       onto Moen Avenue. Furthermore, roll-off trucks are used to separate materials, and the roll-off
       boxes to dispose of the unacceptable waste are difficult to access.
¶ 20        Devon Moose, an environmental engineer, testified on behalf of Will County. Moose
       believed that the application had not provided sufficient detail to find the facility is necessary
       to accommodate the waste needs of the service area. Moose opined that a needs analysis is used
       to demonstrate the need for a facility and ERDS had not conducted this analysis. Moose stated
       that there were already three transfer stations in the area “all working under their allowed
       capacity” and believed it was difficult to demonstrate a need in the service area.
¶ 21        Moose opined that the proposed facility was too small and dangerous at 600 TPD.
       Specifically, Moose stated that the proposed facility would be unable to queue trucks as
       detailed in the application and that there was a lack of space on the tipping floor for sorting.
       Moose was concerned with the traffic flow because the trucks would have to go against traffic,
       cross traffic, and head-on traffic to get to the facility and queuing area. Moose also testified
       that the stormwater management plan had “significant errors and problems” because there was
       no clogging analysis, swale analysis, or conveyance pipe analysis, the orifice drains were too
       small, and the detention basin was limited. He further opined that the design did not minimize
       danger to surrounding area from fire, spills, and other operational accidents because of the lack
       of detail in the application on storage, queuing, and flooding.



                                                    -7-
¶ 22        The hearing officer found that the Village Board had jurisdiction to review the application
       but that ERDS failed to meet criteria (i), (ii), and (v). The hearing officer recommended adding
       special conditions to criteria (ii) and (v) in the siting approval.
¶ 23        Regarding criterion (i), the hearing officer determined that ERDS failed to meet the
       criterion because ERDS’s evidence “contains no determination of the amount of waste
       requiring disposal that is or could be directly hauled to a landfill or some other transfer station
       and contains no calculation of transfer station capacity.”
¶ 24        Regarding criterion (ii), the hearing officer found that the evidence showed that the risk for
       leachate from the proposed facility to the streets was “quite high.” Also, there was no place for
       the transfer trailers and hauler trucks to operate at the same time.
¶ 25        Regarding criterion (v), the hearing officer found that the 65-foot entrance was too narrow
       and the trucks would have to execute a perfect turn to avoid hitting the gate. Also, the trucks
       would have more difficulty turning into the entrance depending on the weather. The transfer
       trailer’s outbound lane crosses the inbound truck lane, which can cause backups and safety
       issues. The roll-off trucks would have difficulty locating the roll-off boxes. ERDS failed to
       discuss how the storage of equipment on the property would not affect the traffic flow and
       inadequately explained traffic flow during the peak operations.
¶ 26        In September, the Village Board published ordinance No. 1026, conditionally approving
       the application. It found that the notice requirements were met and that ERDS met all of the
       criteria. It also found that ERDS met criteria (ii) and (v) subject to special conditions. The
       Village Board adopted all of the hearing officer’s findings and conclusions except on criteria
       (i) and except (ii) and (v) regarding the special conditions.
¶ 27        Under criterion (i), The Village Board found that ERDS’s evidence about improving
       transportation, environmental, and economic matters was properly considered under criteria
       (i). The Village Board determined that the application, Hock’s testimony, and written public
       comments provided evidence that the proposed facility was necessary to assist the other
       transfer stations with the overabundant supply of materials. The Village Board did not find
       Smith’s testimony persuasive because she was not an engineer or licensed in any profession
       and her testimony focused on whether a landfill is necessary. Smith testified that Citiwaste
       could provide transfer capacity without taking into account that Citiwaste does not take in
       general refuse. Smith believed that a transfer station was not necessary in the proposed location
       but did not know where the “population centroid,” or center of the population, was located. She
       admitted that generation versus disposal capacity analysis is not the only valid way to
       demonstrate need. Furthermore, the Village Board also was not persuaded by the argument that
       ERDS needed to conduct a transfer capacity analysis for waste production and waste disposal
       capacities.
¶ 28        Under criterion (ii), The Village Board determined that Hock’s testimony was “more
       thorough and credible” and, thus, ERDS presented evidence sufficient to prove criteria (ii),
       provided that ERDS complied with specified conditions. Those conditions included (1) a 300
       TPD limit, (2) limiting the types of material accepted, (3) load checking, (4) running the
       proposed facility in accordance with the application, and (5) review and approval of the village
       engineer on the final design of the stormwater management system.
¶ 29        Under criterion (v), the Village Board found that ERDS met its burden of proof, provided
       that it complied with specified conditions. Those conditions included (1) a 300 TPD limit with
       the potential to temporarily exceed the limit up to 600 TPD; (2) additional personnel to direct

                                                    -8-
       traffic; and (3) review and approval by the village engineer of the final site plan, traffic
       circulation design, signage, and plan of operation to minimize the danger from any traffic
       conflicts.
¶ 30       In October, Will County and WMI filed separate petitions, requesting the Illinois Pollution
       Control Board to review the Village Board’s decision. The Pollution Board accepted the
       petitions for review and consolidated the actions. The parties’ petitions alleged that the siting
       application should not have been granted because (1) the Village Board had lacked jurisdiction
       to rule on the siting application, and (2) the statutory criteria (i), (ii), (v), and (viii) for siting a
       transfer station were not met. In April 2016, the Pollution Board found that (1) the Village
       Board had jurisdiction to review the siting application; (2) the amendment to the application
       was proper; and (3) the Village Board’s decision on criteria (i), (ii), (v), and (viii) was not
       against the manifest weight of the evidence. Petitioners appealed the Pollution Board’s
       decision to this court.

¶ 31                                     Appellate Proceedings
¶ 32       This court issued an opinion in this case on July 5, 2018, unanimously affirming the
       decision of the Pollution Board approving the application of ERDS to locate a transfer station
       at a designated site in Will County. On July 26, 2018, appellant, WMI, filed a petition for
       rehearing arguing that the Pollution Board had made insufficient arguments on which this
       court could base a reasoned decision.
¶ 33       After careful consideration of the petition, one member of the original majority was
       persuaded by its arguments and now dissents from the earlier opinion. The remaining panel
       members adhere to the original decision but have supplemented the analysis.
¶ 34       We deny the petition for rehearing but modify the majority opinion and incorporate the
       new dissent.

¶ 35                                           ANALYSIS
¶ 36                                      I. Notice Requirements
¶ 37       Petitioners argue that ERDS did not comply with the notice requirements of section 39.2(b)
       of the Environmental Protection Act (Act) (415 ILCS 5/39.2(b) (West 2014)) because Hock’s
       testimony that ERDS proposed a 600 TPD, and later an unlimited throughput, incorrectly
       described “the nature and size” of the proposed facility. Therefore, petitioners contend that the
       Village Board lacked jurisdiction to review the application. Respondents claim that the
       application proposed that the facility would handle an average of 200 TPD and that this
       statement was sufficient to notify interested persons about the nature and size of the facility in
       compliance with section 39.2(b). Furthermore, respondents assert that waste capacity is not
       relevant to the nature and size of the facility and, therefore, respondents did not violate the
       provision in section 39.2(b).
¶ 38       The requirements of section 39.2(b) must be followed in order for the county board to have
       jurisdiction to hear the proposal. Maggio v. Pollution Control Board, 2014 IL App (2d)
       130260, ¶ 15. Section 39.2(b) states:
               “No later than 14 days before the date on which the county board or governing body of
               the municipality receives a request for site approval, the applicant shall cause written
               notice of such request to be served either in person or by registered mail, return receipt

                                                       -9-
                requested, on the owners of all property within the subject area not solely owned by the
                applicant, and on the owners of all property within 250 feet in each direction of the lot
                line of the subject property ***.
                    ***
                    Such notice shall state the name and address of the applicant, the location of the
                proposed site, the nature and size of the development, the nature of the activity
                proposed, the probable life of the proposed activity, the date when the request for site
                approval will be submitted, and a description of the right of persons to comment on
                such request as hereafter provided.” 415 ILCS 5/39.2(b) (West 2014).
¶ 39        The purpose of section 39.2(b) is to notify interest persons about an applicant’s intention to
       develop, in this case, a new transfer facility. Tate v. Pollution Control Board, 188 Ill. App. 3d
       994, 1019 (1989). “The notice is sufficient if it is in compliance with the statute and it places
       potentially interested persons on inquiry about the details of the activity.” Id.
¶ 40        In Tate, the petitioners argued that the county board lacked jurisdiction to review an
       application for the expansion of a landfill because the respondent failed to accurately describe
       the floodplain location, the facility’s height expansion, or the facility’s special waste activity.
       Id. at 1017. The Fourth District explained that the statute did not specifically require that this
       information be included in the notice and concluded that the notice complied with the
       requirements of section 39.2(b). Id. at 1019.
¶ 41        In Daubs Landfill, Inc. v. Pollution Control Board, 166 Ill. App. 3d 778, 779 (1988), the
       Fifth District reviewed whether the county board lacked jurisdiction because the siting
       application inaccurately stated the legal description of the proposed landfill. The court stated
       that section 39.2(b) did not specifically require the legal description in a notice; rather, the
       section only requires the “ ‘location of the proposed site.’ ” Id. at 780 (quoting Ill. Rev. Stat.
       1985, ch. 111½, ¶ 1039.2(b)). The court further explained that, although there was a
       discrepancy between the legal and narrative description, interested persons would have
       inquired about the discrepancy and would not have relied solely on the legal description. The
       court found that the narrative description of the proposed landfill alone provided interested
       persons with notice of the location of the proposed facility.
¶ 42        The Act requires that we construe this statute liberally. 415 ILCS 5/2(c) (West 2014)
       (“[t]he terms and provisions of this Act shall be liberally construed so as to effectuate the
       purposes of this Act”). Furthermore, we will not misinterpret the statute by reading into it
       exceptions, limitations, or conditions that the legislature did not express. Petersen v. Wallach,
       198 Ill. 2d 439, 446 (2002). Similar to the courts’ interpretation in Daubs and Tate, section
       39.2(b) does not specifically require applicants to include the waste capacity of the facility
       within the notice. We do recognize that waste capacity is an important factor when considering
       section 39.2(a) criteria. See M.I.G. Investments, Inc. v. Environmental Protection Agency, 122
       Ill. 2d 392, 401 (1988). Even with this acknowledgement, however, we believe interested
       persons received sufficient notice. ERDS stated that it would “handle an average 200 tons per
       day of solid waste.” (Emphasis added.) This put all interested parties on notice that the amount
       of TPD would vary. Similar to Daubs, it is unlikely that interested persons would have ignored
       the term “average” and would have relied solely on ERDS handling 200 TPD. Moreover, if any
       interested persons wanted to learn more about the waste amount, they could have inquired
       about it in the application, as the notice stated when ERDS would file the application and
       where it would be available for review. The application stated that the proposed facility “may

                                                   - 10 -
       desire to accept more than 200 [TPD] of waste.” Thus, we find that the Village Board had
       jurisdiction to review the siting application.

¶ 43                                    II. Application Amendments
¶ 44       Will County claims that ERDS improperly amended the application twice in violation of
       section 39.2(e) of the Act (415 ILCS 5/39.2(e) (West 2014)). Specifically, Will County alleges
       that Hock’s testimony that ERDS proposed 600 TPD, and later an unlimited throughput, were
       amendments to the application in violation of section 39.2(e), which permits only one
       amendment. Respondents assert that the application was only amended once in accordance
       with section 39.2(e) and that information about the 600 TPD and unlimited throughput was
       also included in the original application.
¶ 45       Section 39.2(e) states:
                     “At any time prior to completion by the applicant of the presentation of the
                applicant’s factual evidence and an opportunity for cross-questioning by the county
                board or governing body of the municipality and any participants, the applicant may
                file not more than one amended application upon payment of additional fees pursuant
                to subsection (k).” Id.
¶ 46       The application was only amended once in accordance with section 39.2(e). ERDS filed an
       “ERRATA,” and the hearing officer determined it was an amendment to the application. Will
       County’s argument that Hock’s testimony was a second amendment in violation of section
       39.2(e) is without merit because Hock’s testimony regarding the 600 TPD and the unlimited
       throughput was also in the application. In particular, the application stated that the proposed
       facility “may desire to accept more than 200 [TPD] of waste. The facility’s Host Agreement
       with Will County indicates that a fee will be paid to Will County for every ton of waste
       accepted over 600 [TPD].” Thus, we hold that ERDS did not violate section 39.2(e).

¶ 47                                            III. Conditions
¶ 48       Petitioners allege that the Village Board improperly imposed conditions under criteria (ii)
       and (v) when approving the application. In particular, petitioners claim that the Village Board
       adopted the findings and conclusions of the hearing officer’s report, which stated that ERDS
       did not meet, inter alia, criteria (ii) and (v). Petitioners claim that the Village Board cannot
       place conditions on criteria it determined were not met because the plain language of section
       39.2(a) states approval is granted only when all nine criteria have been met. Respondents assert
       that section 39.2(e) permits the Village Board to impose conditions on siting approval.
¶ 49       Petitioners raise an issue of statutory interpretation. The primary objective of statutory
       interpretation is to determine and give effect to the legislature’s intent. People v. Jones, 214 Ill.
       2d 187, 193 (2005). The language within the statute must be given its plain and ordinary
       meaning. Hadley v. Illinois Department of Corrections, 224 Ill. 2d 365, 371 (2007). “Where
       the statutory language is clear, it will be given effect without resort to other aids of
       construction.” Id. An issue of statutory interpretation is reviewed de novo. Hamilton v.
       Industrial Comm’n, 203 Ill. 2d 250, 254-55 (2003).
¶ 50       Section 39.2(e) states:
               “In granting approval for a site the county board or governing body of the municipality
               may impose such conditions as may be reasonable and necessary to accomplish the

                                                    - 11 -
               purposes of this Section and as are not inconsistent with regulations promulgated by the
               Board.” 415 ILCS 5/39.2(e) (West 2014).
¶ 51       Section 39.2(e) states that the Village Board may “impose such conditions as may be
       reasonable and necessary to accomplish the purposes of this Section.” (Emphasis added.) Id.
       Thus, if the conditions will help ERDS meet the criteria, i.e., accomplish the purpose of the
       section, then the Village Board may impose them. In fact, the Fifth District found that
       conditions placed on a site approval supported the Pollution Board’s finding that a criterion
       was met. File v. D&L Landfill, Inc., 219 Ill. App. 3d 897, 908 (1991) (finding that conditions
       placed on site approval help to minimize incompatibility with surrounding area and, thus, the
       Pollution Board’s finding that the criterion was met was not against the manifest weight of the
       evidence). Therefore, we hold that the Village Board’s imposition of conditions was proper.

¶ 52                                       IV. Section 39.2(a) Criteria
¶ 53       Petitioners contend that the Pollution Board’s decision, affirming the Village Board’s
       findings and consequently granting the approval of the siting application, was against the
       manifest weight of the evidence because ERDS had not met criteria (i), (ii), (v), and (viii)
       under section 39.2(a) of the Act (415 ILCS 5/39.2(a) (West 2014)).
¶ 54       Section 39.2(a) states:
                    “(a) The county board of the county or the governing body of the municipality, as
               determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove the
               request for local siting approval for each pollution control facility which is subject to
               such review. An applicant for local siting approval shall submit sufficient details
               describing the proposed facility to demonstrate compliance, and local siting approval
               shall be granted only if the proposed facility meets the following criteria:
                        (i) the facility is necessary to accommodate the waste needs of the area it is
                    intended to serve;
                        (ii) the facility is so designed, located and proposed to be operated that the
                    public health, safety and welfare will be protected;
                                                      ***
                        (v) the plan of operations for the facility is designed to minimize the danger to
                    the surrounding area from fire, spills, or other operational accidents;
                                                      ***
                        (viii) if the facility is to be located in a county where the county board has
                    adopted a solid waste management plan consistent with the planning requirements
                    of the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling
                    Act, the facility is consistent with that plan; for purposes of this criterion (viii), the
                    ‘solid waste management plan’ means the plan that is in effect as of the date the
                    application for siting approval is filed[.]” Id.
¶ 55       Although the board is required to review all criteria, the application is insufficient when
       one criterion has not been met. Fox Moraine, LLC v. United City of Yorkville, 2011 IL App
       (2d) 100017, ¶ 90. The reviewing court must not reweigh the evidence. Id. ¶ 88. It must be
       clearly evident from the record that the Pollution Board should have reached the opposite
       conclusion before a reviewing court reverses the Pollution Board’s decision. Peoria Disposal
       Co. v. Illinois Pollution Control Board, 385 Ill. App. 3d 781, 800 (2008). “It has been held that

                                                     - 12 -
       a determination on the second criterion is purely a matter of assessing the credibility of the
       expert witnesses.” Fox Moraine, 2011 IL App (2d) 100017, ¶ 102. The Pollution Board’s
       decision is reviewed under the manifest weight of the evidence standard. Id. ¶ 87 (citing Town
       & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 119 (2007)).

¶ 56                                             A. Criterion (i)
¶ 57        Petitioners argue ERDS had not met criterion (i) because (1) it failed to conduct a transfer
       capacity analysis of transfer stations serving the proposed service area to demonstrate a need
       for the proposed facility; (2) it failed to conduct a transfer capacity analysis of transfer stations
       serving the proposed service area but located outside of the area to demonstrate a need for the
       proposed facility; (3) it did not provide evidence that the proposed facility would increase
       competition, keep prices down, and efficiently transport waste to the Prairie View RDF; and
       (4) it did not provide a determinative amount of waste that would be directed to Prairie View
       RDF or another transfer station. Citing Fox Moraine, 2011 IL App (2d) 100017, ¶ 110,
       respondents allege that ERDS does not need to show an “absolute necessity” for a new facility
       and, thus, a transfer capacity analysis is not necessary to find that it sufficiently met criterion
       (i).
¶ 58        Here, respondents have shown that the proposed facility is necessary to accommodate the
       waste needs of the service area. The evidence indicates that there were three transfer stations in
       the service area and two were limited in the amount and type of waste they received. For
       instance, the Rockdale Transfer Station took only recyclables, and the Citiwaste Transfer
       Station took only clean construction and demolition debris, landscape waste, and recyclables.
       The Joliet Transfer Station is the only municipal solid waste transfer station in the service area.
       It was currently accepting more TPD than in its past years, and it was observed that the station
       had large amounts of waste on the tipping floor. Moreover, it had been observed cutting off
       trucks waiting in line, and consequently, the trucks were not allowed to dump. Nebel, a WMI
       employee, testified that sometimes 30 loads of waste were left on the tipping floor and
       discharged loads were partially outside the building. There was a capacity shortfall of 853 to
       2046 TPD in the service area because the Joliet Transfer Station was currently generating more
       than double the amount of its average volume and it had been observed to be operating beyond
       capacity. Also, there are three landfills in the service area; however, the SWMP and the Prairie
       View RDF host agreement state that “as much waste as practical” in the service area should be
       disposed at Prairie View RDF. The amount of waste entering Prairie View RDF remained
       consistent from 2007 to 2011 but decreased by 30% from 2011 to 2013. Yet the population is
       expected to increase by 40% by 2040. The proposed facility will increase competition to the
       service area and increase transfer capacity. It will also provide benefits to the village of
       Rockdale pursuant to the host agreement, provide benefits to Will County as more waste will
       be disposed at Prairie View RDF, have longer operational hours than the Joliet Transfer
       Station, and reduce environmental impacts. Although Smith testified on behalf of WMI that
       the proposed facility was not a necessity, the Pollution Board considered that the Village Board
       did not find her arguments persuasive for the various reasons stated above, and credibility
       findings will not be reweighed. See id. ¶ 88. Therefore, we determine that the Pollution
       Board’s ruling that ERDS had met criterion (i) was not against the manifest weight of the
       evidence.



                                                    - 13 -
¶ 59        Petitioners’ argument that ERDS failed to meet criterion (i) because it did not conduct a
       transfer capacity analysis of the transfer stations is unpersuasive. Respondents do not need to
       show “absolute necessity” for a new facility. Id. ¶ 110. Rather, respondents must show an
       “urgent need” for the facility and a “reasonable convenience of establishing it.” Id.
       Respondents have demonstrated this in the evidence presented in the record.
¶ 60        The dissent states that, in relying on the Village Board’s determinations, the Pollution
       Board ignored two errors in ERDS’s application: (1) ERDS failed to calculate the disposal
       shortfall in accordance with the amount of waste generate by the entire service area, and
       (2) ERDS failed to take into consideration the disposal capacity of direct haul options and the
       capacity of existing transfer stations in the entire service area. The dissent reasons that this
       miscalculation is evidence that the Pollution Board did not conduct a thorough and
       independent analysis of the evidence as contemplated in Town & Country Utilities, Inc. v.
       Illinois Pollution Control Board, 225 Ill. 2d 103, 121 (2007), and therefore, this court could
       not review the Pollution Board’s decision. We do not agree.
¶ 61        In the siting application (supra ¶ 6) and during John Hock’s testimony (supra ¶ 12), ERDS
       explained that there was a disposal capacity shortfall between 853 to 2046 tons per day in the
       service area because the Joliet station was currently generating more than double the amount of
       its average volume. Although ERDS’s calculations are specifically about the disposal capacity
       shortfall at the Joliet station, there is no indication that ERDS miscalculated the shortfall, as the
       Joliet station could be the only station with a shortfall in the area. Section 39.2(a)(i) of the Act
       (415 ILCS 5/39.2(a)(i) (West 2016)) does not mandate that ERDS show a disposal capacity
       shortfall at all the stations in the entire area; rather, it states that ERDS must demonstrate “the
       facility is necessary to accommodate the waste needs of the area it is intended to serve.”
¶ 62        Here, the Pollution Board properly considered evidence that the proposed facility is
       necessary to accommodate the waste needs of the area it is intended to serve pursuant to
       section 39.2(a)(i) for two reasons. First, it was proper for the Pollution Board to consider the
       Village Board’s decision, as the Pollution Board could not disturb the decision unless it was
       against the manifest weight of the evidence. Peoria Disposal Co. v. Illinois Pollution Control
       Board, 385 Ill. App. 3d 781, 800 (2008) (finding that the appropriate standard for Pollution
       Board is whether local siting authority’s decision is against manifest weight of the evidence).
       Second, in its written decision, the Pollution Board wrote a lengthy discussion on the
       arguments of each party and the evidence and testimony that each party presented. The
       Pollution Board also addressed the evidence it considered sufficient to meet criterion (i) of
       section 39.2(a):
                    “ERDS provided evidence regarding the disposal capacity of landfills in the service
                area. [Citation.] ERDS also provided a discussion in the application regarding the
                transfer stations in the area including Joliet Transfer Station and discussed the amount
                of waste accepted daily. [Citation.] The application listed transfer stations outside the
                service area and provided information on some of those facilities. [Citation.]
                Additionally, Mr. Hock testified about his personal observations that the Joliet Transfer
                Station was overburdened and that at the current rate of generation there was a shortfall
                of transfer station capacity. [Citation.] ERDS also provided evidence that the siting of
                the transfer station would offer benefits.
                    Based on this record, the Board finds that the Village’s decision is supported by
                evidence in the record. Therefore, the Board finds that the Village’s decision is not

                                                    - 14 -
                against the manifest weight of the evidence and affirms the Village’s decision on
                criterion I.”
¶ 63       We agree with the Pollution Board that its decision is supported by the record. In addition
       to the Joliet station’s disposal capacity shortfall, ERDS stated that the Joliet station was the
       only station that transferred municipal solid waste in the entire service area, that an overflow of
       waste was observed at the station, and that the station was cutting off trucks waiting in line to
       dump waste. Although the SWMP and Prairie View RDF host agreement states that as much
       waste as practical must be disposed of at Prairie View RDF, the amount of waste disposed of at
       the site decreased by 30% while the population is expected to increase by 40%. The proposed
       station would provide additional assistance in the area where the other stations do not accept
       municipal solid waste and where the Joliet station, the only station accepting municipal waste,
       is beyond capacity.

¶ 64                                            B. Criterion (ii)
¶ 65        Petitioners claim ERDS had not met criterion (ii) because (1) it had not provided evidence
       that the stormwater management plan would safeguard the public from flooding in violation of
       the Will County Stormwater Ordinance, (2) the recorded peak water level in the detention
       system was not compliant with the Stormwater Ordinance, and (3) it had not provided
       evidence that the public will be safe from the traffic conflicts within the proposed facility.
¶ 66        Section 203.6, part F of the Stormwater Ordinance states: “Storage facilities shall be
       designed such that the existing conditions pre-development peak runoff rate from the 100-year,
       critical duration rainfall will not be exceeded assuming the primary restrictor is blocked.”
       Under this section, petitioners allege that if the orifices within the detention ponds are clogged,
       stormwater will overflow and flood onto Moen Avenue.
¶ 67        The evidence revealed that the water management system is designed to control and
       manage runoff from developed areas for a 100-year critical duration storm event. ERDS
       planned to prevent clogging by incorporating features in the pipes that prevent clogging, to
       perform preventative cleaning, and to design the system so that it continues to work properly
       even if clogging occurs. If a drain were to clog, the pond would stop receiving water at a
       certain elevation level and water would be directed to detention pond 2, which discharges the
       water out of the facility.
¶ 68        Petitioners further assert that the Stormwater Ordinance requires that the peak stages of the
       detention system be below finished floor elevation. Petitioners argue that the lowest floor
       elevation is 571.00 msl but that detention pond 1’s peak water elevation is 577.91 feet msl.
       Also, petitioners argue that the Stormwater Ordinance requires one foot of freeboard above the
       design high water level and detention ponds 1 and 2 do not have the freeboard in the facility
       design.
¶ 69        However, Hock testified that freeboard will be included to prevent “the movement and
       potential splashing or blowing from wind.” Also, the evidence shows that the initial elevation
       level is 571 feet msl while the maximum elevation level for detention pond 1 is 578 feet msl.
       The peak water elevation level from detention pond 1 is, therefore, below the maximum
       elevation level, and petitioners have failed to show how the peak level being below the
       maximum elevation level did not meet the requirements of the design criteria within the siting
       application.


                                                   - 15 -
¶ 70       Also, the evidence shows that Hock presented different traffic scenarios using ERDS’s
       largest collection truck model and a large transfer trailer model. The application revealed that
       the collection trucks’ and transfer trailers’ estimated activity time in the facility was relatively
       short and that the queuing area would prevent backup onto Moen Avenue and on-site traffic.
       Hock testified that, in a higher throughput scenario, the facility would have 10 or fewer trucks
       moving through the facility at one time because it would take the trucks a relatively short
       period to enter, load/unload, and exit the facility. Hock’s comparison had shown that the turn
       into other transfer facilities was narrower than at the proposed facility and, therefore, “the
       transfer trailers can readily make all the required turns at the Moen Transfer Station.”
¶ 71       Petitioners argue that the traffic conflicts within the facility are a threat to public safety
       because the 65-foot driveway is too narrow and will cause backup on Moen Avenue. However,
       section 39.2(a) does not require the elimination of all traffic problems but requires only a
       showing that “the traffic patterns to and from the facility are designed to minimize impact on
       existing traffic flows.” In this case, respondents showed that the facility was designed to
       minimize the impact of existing traffic flows when Hock testified about the queuing areas and
       the relatively short activity time in the facility. Furthermore, the Pollution Board noted that the
       Village Board believed Hock’s testimony was “more thorough and credible,” and we will not
       reweigh the evidence. Therefore, we find the Pollution Board’s decision that ERDS had met
       criterion (ii) was not against the manifest weight of the evidence.

¶ 72                                         C. Criterion (v)
¶ 73       Petitioners contend that ERDS did not meet criterion (v) because it failed to provide
       evidence that the proposed facility was designed to “minimize the danger from operational
       accidents arising out of on-site movements.”
¶ 74       Under criterion (v), the focus is on safety “with the emphasis on planning to avoid or
       minimize the danger from catastrophic accidents.” Industrial Fuels & Resources/Illinois, Inc.
       v. Pollution Control Board, 227 Ill. App. 3d 533, 547 (1992). “There is no requirement that the
       applicant guarantee no accidents will occur, for it is virtually impossible to eliminate all
       problems.” Wabash & Lawrence Counties Taxpayers & Water Drinkers Ass’n v. Pollution
       Control Board, 198 Ill. App. 3d 388, 394 (1990).
¶ 75       The evidence reveals that the proposed facility includes design and operational features
       that will minimize the danger to the surrounding area from fire and spills. The incident
       prevention and response plan within the siting application details fire, spill, and accident
       prevention and responses. The facility will have a safety officer, and the building is a
       “pre-engineered metal building” equipped with a sprinkler system. Employees will be trained,
       and equipment will be cleaned to remove any combustible waste. The facility will not accept
       liquid waste, and any liquid found on the tipping floor will be drained, processed, and
       discharged into a sewer system. No liquid from the tipping floor will be discharged to the
       stormwater management system.
¶ 76       Furthermore, the evidence shows that the proposed facility will minimize the danger from
       operational on-site vehicle accidents. ERDS planned to hire a safety officer who will be
       responsible for implementing procedures to prevent operational accidents and coordinating
       responses to incidents or emergencies. The map of the proposed facility depicts traffic arrows
       and stop signs on the roadway to guide the trucks through the facility. Furthermore, the Village
       Board placed certain conditions to help minimize any traffic conflicts, including adding

                                                    - 16 -
       additional personnel to direct traffic during peak hours and having the plan of operation to
       minimize the danger of traffic conflicts reviewed and approved by the village engineer. As we
       determined above, the Village Board may impose conditions necessary to accomplish the goals
       of section 39.2(a). Thus, we rule that the Pollution Board’s decision that ERDS had met
       criterion (v) was not against the manifest weight of the evidence.

¶ 77                                         D. Criterion (viii)
¶ 78       WMI asserts that the application was not consistent with certain provisions in chapters four
       and five of the Will County SWMP that state a transfer station should be located in the
       northern and eastern parts of the county and that WMI is responsible for ensuring the
       development of transfer station networks to serve the county’s needs in compliance with
       section 39.2(a)(viii). Respondents argue that the plan allows other companies to develop a
       transfer station network and that WMI does not have sole right to site a transfer station.
¶ 79       Chapter four, page four, of the Will County SWMP’s 2001 update states, “Selected
       contractor may desire to site transfer stations in northern and eastern parts of the County.” It
       also states, “One transfer station needed in both northern and eastern parts of the County.”
       Chapter 5, page 17, of the SWMP requires that a new pollution control facility in Will County
       must negotiate a host agreement with the county before any determinations are made by the
       county.
¶ 80       Chapter 5, page 18, states, “The County will not pursue the development of a
       County-owned transfer station, rather the County will allow the private-sector to develop a
       transfer station network as it deems appropriate and pursuant to the terms of the Host and
       Operating Agreement for the Prairie View RDF.” The Host and Operating Agreement for
       Prairie View RDF states, “Operator shall insure that such Interim and Final Disposal Facilities
       are combined with a network of new and/or existing transfer facilities necessary and
       satisfactory to meet and address the ongoing solid and special waste disposal needs of the Will
       County Service Area over the term of this Agreement.” WMI is listed as the operator in the
       agreement.
¶ 81       There is nothing in the record that shows that the application was not in compliance with
       the Will County SWMP. The provisions that WMI cites did not give WMI exclusive control to
       site a transfer station and do not limit the location of a transfer station to the northern and
       eastern parts of the county. Therefore, we hold that the Pollution Board’s ruling that ERDS met
       criterion (viii) was not against the manifest weight of the evidence.

¶ 82                                 V. Sufficiency of the Application
¶ 83       Lastly, petitioners argue that ERDS did not “submit sufficient details describing the
       proposed facility” in accordance with section 39.2(a) because the Village Board could not
       evaluate the criteria without an exact proposed waste throughput.
¶ 84       Section 39.2(a) explains that “[a]n applicant for local siting approval shall submit
       sufficient details describing the proposed facility to demonstrate compliance.” 415 ILCS
       5/39.2(a) (West 2014). Under section 39.2, it is important to show that a proposed facility is
       “reasonably required by the waste needs of the area, including consideration of its waste
       production and disposal capabilities.” Fox Moraine, 2011 IL App (2d) 100017, ¶ 110. As
       discussed above, we found that ERDS provided sufficient evidence of its waste production and


                                                  - 17 -
       disposal capabilities and that the Pollution Board’s decision was not against the manifest
       weight of the evidence. Thus, we find that ERDS provided sufficient details to describe the
       proposed facility to comply with section 39.2(a).

¶ 85                                        CONCLUSION
¶ 86       The judgment of the Illinois Pollution Control Board is affirmed.

¶ 87       Affirmed.

¶ 88        JUSTICE WRIGHT, dissenting:
¶ 89        In this case, appellant, Waste Management of Illinois, Inc. (WMI), filed a petition for
       rehearing of our prior opinion pursuant to Illinois Supreme Court Rule 367(b) (eff. Nov. 1,
       2017). Upon reconsideration, I now respectfully dissent and withdraw my prior concurrence. I
       understand the complications and frustrations arising from my decision to withdraw my
       support for an opinion that represented a unanimous decision from this panel on all issues.
¶ 90        I begin by focusing on the third contention addressed in the request for rehearing. With
       respect to criterion (i), the Pollution Board punted and blindly accepted the applicant’s
       calculations, adopted by the Village Board. Had the Pollution Board conducted its own
       in-depth examination of the evidence of record, the Pollution Board would have recognized the
       shortfall of disposal capacity within the expansive tri-county service area was improperly
       calculated by the applicant’s witness.1
¶ 91        I now conclude that there is a gaping hole in the evidence that the Pollution Board
       overlooked. The evidence gap arises from two errors. First, the applicant’s evidence regarding
       purported disposal shortfall erroneously compared the total amount of waste generated by the
       entire service area to the limited waste disposal capacity of a single county, Will County.
       Second, the applicant’s evidence regarding purported disposal shortfall ignored the disposal
       capacity of direct haul options and the capacity of existing transfer stations in the entire service
       area. Had the Pollution Board conducted its own in-depth analysis of the evidentiary basis for
       the applicant’s conclusions about a shortfall, these errors resulting in incompetent evidence
       concerning the shortfall would have been discovered by the Pollution Board.
¶ 92        Regardless, the Pollution Board’s order does not reveal the specific numerical values of
       municipal solid waste generation and disposal capacity that the Pollution Board considered
       from the record before concluding a disposal capacity shortfall existed. This omission of the
       Pollution Board’s precise factual basis for the conclusions regarding necessity makes an
       in-depth analysis of the Pollution Board’s findings impossible.
¶ 93        In County of Kankakee v. Pollution Control Board, our court discussed the language of
       sections 39.2 and 40.1 of the Environmental Protection Act (Act). See 396 Ill. App. 3d 1000,
       1007 (2009); 415 ILCS 5/39.2, 40.1 (West 2004). Our court wisely observed that “the local
       siting approval is just the first step *** in the process to approve or disapprove a siting
       application.” (Emphasis in original.) County of Kankakee, 396 Ill. App. 3d at 1007. The
       Pollution Board completes the bifurcated administrative process that is necessary before


           This service area appears to be defined to include the applicant’s customer base situated in Will,
           1

       Grundy, and Kendall Counties and various isolated municipalities located in other counties.

                                                     - 18 -
       judicial review of the conditional approval pertaining to this particular siting application. Town
       & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 121 (2007).
¶ 94        Based on my understanding of the carefully reasoned guidance from our supreme court in
       the holding of Town & Country Utilities, Inc., when one party disagrees with the first tier
       decision of the local siting authority, judicial review cannot take place until the Pollution
       Board steps in and independently makes a second tier determination based on the Pollution
       Board’s independent consideration of the record. See id. at 120-21. I respectfully observe that,
       much like the often defended importance of judicial independence, the Pollution Board’s
       independence is equally important to the siting approval process and should be strictly required
       and protected during the process of direct judicial review of the Pollution Board’s order.
¶ 95        I write separately to point out that the familiar process of direct judicial review arising out
       of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2016)) normally allows
       our court to look backwards from the circuit court’s decision and solely focus our review on
       the decision of the administrative agency. Typically, we do not review the conclusions of the
       first level of review in the circuit court. However, the statutory limitations for this court, based
       on the Act, create a different procedure. Here, our court does not glance backward to review
       the findings of the Village Board in this case, or any decision that preceded the Pollution
       Board’s final administrative order in other cases. See Town & Country Utilities, Inc., 225 Ill.
       2d at 121-23; see also County of Kankakee, 396 Ill. App. 3d at 1004; Peoria Disposal Co. v.
       Illinois Pollution Control Board, 385 Ill. App. 3d 781, 800 (2008). Consequently, I have
       attempted to avoid looking back or indirectly reviewing the Village Board’s findings as factual
       support for the Pollution Board’s order.
¶ 96        The bifurcated approval process for a siting application is worthy of some discussion
       because the statutory scheme involves much legislative foresight. First, the lawmakers require
       the local authority to conduct the hearing on the siting application. To me, this makes good
       sense because the Pollution Board reviews the record created by a qualified hearing officer, on
       the local level, where live public commentary is most easily facilitated due to the location of
       the hearing. See Town & Country Utilities, Inc., 225 Ill. 2d at 120; Kane County Defenders,
       Inc. v. Pollution Control Board, 139 Ill. App. 3d 588, 593 (1985).
¶ 97        Second, the lawmakers provided that a hearing officer conducting the local hearing must
       be “qualified.” 415 ILCS 5/32 (West 2016). I presume the purpose of this provision is to ensure
       the hearing officer has experience in pollution control and/or legal training, as needed to
       develop a coherent and complete record for the Pollution Board to consider with a fresh eye. In
       this case, neither party took issue with the qualifications of the hearing officer, Derke J. Price.
       Neither party criticized the fairness, neutrality, or basis for the hearing officer’s findings that
       the Village of Rockdale (Village) should deny the siting application.
¶ 98        Next, with great insight, our lawmakers set forth detailed qualifications for the appointed
       Pollution Board members assigned the duty to review a local authority’s siting decision.
       Specifically, the Act provides as follows: “[T]he Board shall consist of 5 technically qualified
       members, no more than 3 of whom may be of the same political party” and who “shall have
       verifiable technical, academic, or actual experience in the field of pollution control or
       environmental law and regulation.” Id. § 5(a). Hence, the final credibility and competency
       decisions are solely entrusted to five individuals with diverse political backgrounds but
       common technical expertise.


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¶ 99        In fact, the case law recognizes that the Pollution Board is best qualified to make the
        necessary and independent determinations of “what weight to give to the evidence” and
        “resolve any conflicts” in the evidence contained in the record. Peoria Disposal Co., 385 Ill.
        App. 3d at 801. I contend that the interests of the entire tri-county service area, as defined by
        ERDS, are well served by assigning the resolution of the weight of the evidence and the
        resolution of conflicting evidence to the Pollution Board, rather than entrusting these very
        complex questions to a small village board within a large tri-county service area. Once the
        Pollution Board independently completes the second step in the siting process, the Pollution
        Board’s final administrative decision becomes ripe for direct review by an appellate court of
        law.
¶ 100       Typically, a mixed question of law and fact decided by an administrative agency, such as
        the Pollution Board, would be judicially reviewed by this court using the clearly erroneous
        standard that pays great deference to the conclusions of the administrative agency. See AFM
        Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391-92
        (2001). However, the Act, enacted by the legislature, sets forth a different standard of judicial
        review. In fact, the legislature decided that “[a]ny final order of the Board under this Act ***
        shall be invalid if it is against the manifest weight of the evidence.” (Emphasis added.) 415
        ILCS 5/41(b) (West 2016). Reviewing courts have interpreted this statutory language to
        require a reviewing court to apply the manifest weight of the evidence standard to both the
        Pollution Board’s independent factual findings and the Pollution Board’s legal conclusions
        about the sufficiency of the evidence. See Peoria Disposal Co., 385 Ill. App. 3d at 800-01. The
        Pollution Board’s independent finding, subject to our review, is not present in the record.
        Instead, the Pollution Board arbitrarily adopted the findings of the Village Board. On this
        basis, the Pollution Board’s determination that the Village Board’s decision was correct was
        completely arbitrary, in my view. An arbitrary decision is always contrary to the manifest
        weight of the evidence. See Best v. Best, 223 Ill. 2d 342, 348-50 (2006).
¶ 101       I recognize the 40-page decision of the Pollution Board contains a lengthy recitation of the
        arguments based on each party’s perspective of the evidence presented to the Village hearing
        officer before the Village Board rejected the hearing officer’s recommendations. As stated
        above in paragraph 95, our court does not review the findings of the Village Board or even the
        Village hearing officer. See Town & Country Utilities, Inc., 225 Ill. 2d at 121-23; see also
        County of Kankakee, 396 Ill. App. 3d at 1004; Peoria Disposal Co., 385 Ill. App. 3d at 800.
        Consequently, the conflicting findings of the Village hearing officer and the Village Board that
        hired this particular hearing officer are irrelevant. I submit the arguments presented to the
        Village hearing officer during the local hearing should play no role in the Pollution Board’s
        analysis now subject to our review in this appeal.
¶ 102       For this reason, I conclude the pages and pages of the summarized arguments presented to
        the hearing officer during the local hearing did not deserve a passing glance from the Pollution
        Board. Instead, the Pollution Board was required to independently determine the facts
        established by the manifest weight of the evidence. If those facts caused the Pollution Board to
        reach the same conclusion as the Village hearing officer, the conditional application should
        have been denied by the Pollution Board.
¶ 103       I reiterate that since the Village hearing officer and the Village Board reached opposite
        conclusions based on the same evidence and arguments, the Pollution Board had an
        independent duty to reweigh all of the evidence in the record. In so doing, the Pollution Board

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        was required to determine whether the manifest weight of the evidence pointed to the
        conclusion reached by the Village’s hearing officer or the Village Board. Unfortunately, a
        scavenger hunt is necessary to locate the scant, unsupported findings of the Pollution Board
        following a purported independent review of the manifest weight of the evidence introduced
        during the local hearing. These “findings” fill less than a page and a half of the 40-page
        decision. For the convenience of the reader, the sparse findings by the Pollution Board,
        scattered throughout the decision, are separately set forth below.

¶ 104                                            I. Criterion (i)
¶ 105       With respect to criterion (i), the Pollution Board finds as follows: “Based on this record, the
        Board finds that the Village’s decision is supported by evidence in the record. Therefore, the
        Board finds that the Village’s decision is not against the manifest weight of the evidence and
        affirms the Village’s decision on criterion I.”

¶ 106                                            II. Criterion (ii)
¶ 107        With respect to criterion (ii), the Pollution Board finds as follows: “The Board finds that
        the Village’s decision is not against the manifest weight of the evidence. The Village weighed
        the credibility of the witnesses and found Mr. Hock more persuasive and credible. The Board
        does not reweigh the evidence; therefore, the Board affirms the Village’s decision [on criterion
        (ii)].”

¶ 108                                          III. Criterion (v)
¶ 109       With respect to criterion (v), the Pollution Board finds as follows: “Mr. Hock testified that
        the design of the facility met criterion V and Mr. Moose disagreed. The Board does not
        reweigh the evidence. *** [T]he Board finds that the Village’s decision has support in the
        record and therefore, the Board finds the Village’s decision was not against the manifest
        weight of the evidence. The Board affirms the Village’s decision on criterion V.” (Emphasis
        added.)

¶ 110                                        IV. Criterion (viii)
¶ 111       With respect to criterion (viii), the Pollution Board finds as follows: “This evidence is
        sufficient for the Village to find that the siting of the transfer station is consistent with the
        SWMP. While WMI argues that the plan requires siting in only the eastern or northern parts of
        Will County, the record indicates that that [sic] provision applies only to a “ ‘selected
        contractor.’ ”
¶ 112       Based on the Pollution Board’s skeletal, but independent findings reproduced above, I am
        troubled by two recurring themes. First, the Pollution Board consistently misstates the nature
        of the manifest weight of the evidence standard of review. Of course the Pollution Board does
        not reweigh the evidence because the Pollution Board must first weigh the evidence using the
        manifest weight standard.
¶ 113       It is disconcerting to me that the Pollution Board concludes, as set forth above, the
        Village’s decision “has support in the record.” Some evidence is not enough evidence to
        approve the pending conditional application. This is not a correct approach for the Pollution
        Board.

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¶ 114        Second, after evaluating the evidence and drawing the hearing officer’s own conclusions
        about credibility of the Village’s witnesses, the Village’s hearing officer recommended the
        applicant failed to meet the necessary requirement for the conditional application to be
        approved by the Village. The Village disagreed with the hearing officer’s conclusions. Not
        surprisingly, the Village Board rejected the hearing officer’s recommendation to deny the
        application. The Village justified the refusal to follow the recommendations of the hearing
        officer by finding their own witnesses more credible than any other witness. In this case, the
        Pollution Board was obligated to state its own reasoning concerning why the Village’s
        witnesses were credible and the other witnesses were not. Further, the Pollution Board does not
        attempt to address or explain why the Village hearing officer’s conclusions on competency and
        credibility were invalid and against the manifest weight of the evidence submitted to the
        hearing officer.
¶ 115        Due to this omission, the appellant has specifically requested this court to conduct a
        detailed analysis that includes a discussion of the differences between credibility and
        competency. I observe that credibility is a familiar legal concept describing the perceived
        truthfulness of a person testifying from the witness stand. See Morgan v. Department of
        Financial & Professional Regulation, 374 Ill. App. 3d 275, 288-89 (2007). On the other hand,
        competency is another equally familiar legal concept describing the ability of a witness to
        comprehend and truthfully discuss prior events. See City of Chicago v. Bank of Ravenswood,
        93 Ill. App. 3d 52, 55 (1981).
¶ 116        Yet, “competency,” as applied to a siting decision rendered by the Pollution Board, takes
        on a different meaning in my view. In the context of a siting decision, I believe the term
        “competency” describes the accuracy, reliability, or truthfulness of technical information
        contained in the record. Just as an incompetent witness should not be allowed to testify in a
        proceeding before the circuit court, incompetent evidence should not be considered by the
        Pollution Board in an administrative context. In my opinion, both credibility determinations of
        the witnesses and competency determinations of the information must be included and recited
        in the Pollution Board’s independent determinations of fact.
¶ 117        However, due to the rubber-stamping rationale of the Pollution Board, the Pollution
        Board’s independent credibility and competency determinations are simply not present in this
        record. Here, for reasons that are not apparent to me, the Pollution Board did not honor the
        bifurcated approval process. Instead, the Pollution Board took a shortcut by regurgitating the
        findings set forth in the Village Board’s resolution. The Pollution Board did not conduct an
        in-depth analysis or closely examine whether the applicant’s evidence was based on correct
        calculations of waste generated and the waste disposal capacity of the entire service area.
¶ 118        Simply stated, the Pollution Board failed to do its job in the case now before this court.
        Without independent, factually supported findings and determinations from the Pollution
        Board’s perspective of the cold hard evidence, this court has nothing to review. For these
        reasons, I conclude the Pollution Board’s rubber-stamping rationale resulting in conditional
        siting approval of this application must be set aside. Respectfully, I would reverse the Pollution
        Board’s ruling on this basis without considering the merits of the other issues, including the
        insufficiency of the purported intentional and underestimated misinformation contained in the
        statutory notice.
¶ 119        For the reasons set forth above, I respectfully dissent from the modified opinion. I agree the
        request for reconsideration should be denied, after issuing the modified order, because the

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applicant has not raised any additional issues that were not originally addressed by the parties
in the briefs or at oral arguments considered by this court.




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