ILLINOIS POLLUTION CONTROL BOARD
April
3,
1986
CITY OF COLUMBIA, WALTER BYERLEY, JR.,
BARBARA HEINLEIN, DANIEL HEINLEIN,
)
HOMER STEMLER AND LORETTA STEMLER,
Petitioner,
PCB 85—177
COUNTY OF ST. CLAIR AND BROWNING-
FERRIS
INDUSTRIES OF ILLINOIS,
INC.,
Respondents.
BROWNING-FERRIS
INDUSTRIES OF
)
ILLINOIS,
INC.,
Petitioner,
v.
)
PCB 85-220
COUNTY OF ST.
CLAIR,
ILLINOIS,
Respondent,
and
CITY OF COLUMBIA, JEAN ECKERT,
)
MARCELLUS ECKERT,
LANNY JACKSON,
VICKY JACKSON,
HARRY RAYMOND,
PATRICIA RAYMOND, HOMER STEMLER
)
AND LORETTA STEMLER,
Intervenors.
CITY OF COLUMBIA, JEAN ECKERT,
)
MARCELLUS ECKERT,
LANNY JACKSON,
VICKY JACKSON, HARRY RAYMOND,
)
PATRICIA RAYMOND, HOMWER STEMLER
)
AND LORETTA STEMLER,
Petitioners,
)
v.
)
PCB 85—223
(Consolidated)
COUNTY OF ST. CLAIR AND BROWNING—
)
FERRIS INDUSTRIES OF ILLINOIS,
INC.,
)
Respondents.
69.1
—2—
JAMES YOHO AND TOM D. ADAMS APPEARED ON BEHALF OF THE CITY OF
COLUMBIA,
ET AL;
JOHN BARICEVIC,
STATE’S ATTORNEY, APPEARED ON BEHALF OF THE
COUNTY OF ST. CLAIR;
AND
FRED
C. PRILLAMAN
(MOHAN, ALEWELT, AND PRILLAMAN) APPEARED ON
BEHALF OF BROWNING—FERRIS INDUSTRIES
OF
ILLINOIS,
INC.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
Each of these consolidated appeals concerns the November
25,
1985 denial by the County of St.
Clair
(County)
of
a June
27,
1985 application by Browning—Ferris Industries
of Illinois,
Inc.
(BFI)
for site location suitability approval for
a new regional
pollution control facility.
The facility proposed by BFI would
be located
in
rural
Sugar
Loaf Township approximately
4
1/2 miles
southeast of the Village of Dupo,
on property owned by and under
lease
from Columbia Quarry Co.
The proposed facility would
be
a
landfill accepting municipal wastes and non—hazardous special
waste.
The proceedings before the County and the Board
are
in
accordance with what is commonly known
as SB172,
codified
in
Sections
3(x),
39(c),
39.2 and 40.1
of the Environmental
Protection Act
(Ill.
Rev.
Stat.
1985
ch.
111 1/2,
pars.
1003(x),
1039(c), 1039.2,
and 1040.1).
The County determined
that EFI had
satisfied all but two of the criteria contained
in Section
39.2*:
the need criterion and the traffic pattern design
*
Section 39.2(a),
as
it existed
at all applicable
times,
provided that “the county board.. .shall approve
the site location
suitability for such new regional pollution control
facility only
in
accordance with the following criteria:
1.
the facility is necessary to accommodate
the waste needs of
the area
it is intended
to serve;
2.
the facility is so designed, located
and proposed
to
be
operated that the public health, safety and welfare will be
protected;
3.
the facility
is located
so
as
to minimize incompatibility
with the character of the surrounding area and
to minimize the
effect on
the value of
the surrounding property;
4.
the facility is located outside the boundary of the 100 year
flood plain as determined by the Illinois Department of
Transportation,
or the site
is
flood—proofed to meet the
standards and requirements of the Illinois Department of
Transportation
and
is approved by that Department;
(continued)
69-2
—3—
criterion.
The following
is
a brief
summary of the nature of
each appeal.
PCB 85—177
is
a third party appeal pursuant to Section
40.1(b)
filed December
2,
1985.
Six parties are appealing any
“deem approved” status that may be claimed by BFI pursuant
to
39.2(e)
of the Act because the County did not act within 120
days
of the
filing of
the request.
(These parties
in all three
cases are collectively referred
to hereafter as “City”.)
PCB 85—220
is
an appeal
by BFI of the denial of its
application pursuant
to Section 40.1(a)
filed December
30,
1985.
BFI asserts that
it may deem
its application approved,
pursuant
to Section 39.2, but alternatively that the proceedings
were fundamentally unfair
due
to County reliance
on evidence not
admitted
at hearing, and that the County’s decision on criteria
1
and
6 were against
the manifest weight of the evidence.
Nine
persons,
three of whom also are petitioners
in PCB 85—177, have
been admitted
as intervenors.
PCB 85—223
is
a cross—appeal
of the County’s decision
allowed by the Board consistent with Section 40.1(b)
filed
December
30,
1985.
The same nine parties who are intervenors
in
PCB 85-220 assert that due
to BFI’s failure
to comply with the
notice requirements
of Section
39.2,
there was no complete
application over which the County could exercise jurisdiction,
that
the proceedings before
the County were fundamentally unfair
because of flaws
in the hearing process,
and that the County’s
decision
that criteria 2,3,4
and
5 were satisfied was against the
manifest weight of the evidence.
The three cases were consolidated by the Board
for hearing
on appeal on January
9,
1986.
The Board held its hearing on
February 13,
1986, at which
50—60 members of the public were
in
attendance.
At
the Board hearing,
the parties presented evidence and
argument,
but each noted
that the full specification of the
points of error
to be asserted would
be made only
in
the
final
briefs.
Briefs were due
to be filed March 13;
the County filed
its brief on that date.
BFI filed
its brief March
14,
5.
the plan of operations for
the facility
is designed
to
minimize the danger
to the surrounding area from fire, spills,
or
other operational
accidents;
and
6.
the traffic patterns
to
or from the facility are so designed
as
to minimize the
impact on existing traffic flows.”
The Board
notes
that
a seventh criterion was added
by P.A.
84—1071, effective December
2,
1985, concerning
an emergency
response plan
for hazardous waste facilities.
69-3
—4—
accompanied
by
a motion for leave to file instanter asserting
photocopying difficulties;
the motion
is granted.
The City filed
an unsigned brief on March
18 accompanied only by an undated,
unsigned certificate of service.
On March
21, BFI filed
a motion
to strike this unsigned,
unexplained late filing.
The City filed
a reply
in opposition
(as well
as
a signed brief)
on March
24.
The Board denies
the
motion, but
in so doing notes that it does not excuse the late
filing which substantially reduced the Board’s time
to deliberate
all issues
in this case and
to formulate an Opinion.
The Board
must also reject
the City’s contention
that:
“There
is
no
requirement
whatsoever
that
Objectors
even file
a
brief;
it
is
totally
a
courtesy
to
the
Board.
There
is no statute, procedural
rule or
even
Board
order
requiring that
a brief
be filed. ~
Even
if
a party
files
no brief whatsoever,
no
issues
are thereby waived;
the Board
still has an obligation
and duty
to read
the record,
identify issues
of
fact
and law and
rule upon
them.
A brief simply
is an aid
to the Board
in performing
this function”.
While
the Board
is charged by Section 40.1 to consider the
fundamental fairness of
the proceedings, the Board
is not
required
to make
a party’s case.
Since all arguments were not
presented either
in the petitions or
at hearing, the final brief
is an essential element of the case, and not simply
a “courtesy”
to the Board.
PROCEEDINGS AT THE COUNTY LEVEL
As will
be detailed later
in
this Opinion, the Board
finds
that, due
to procedural deficiencies
in the application and
hearing process,
it cannot reach
the merits of the County’s
decision concerning whether
each of the six criteria has been
satisfied.
For this reason,
the Board will recite and
summarize
the procedural aspects of this record*, but will touch upon the
evidence presented concerning
the criteria only briefly and only
insofar as
it relates
to procedural
issues.
*
At the outset,
the Board must note that it has been more than
usually difficult
to assemble
a complete record
in this action,
which the Board attributes
to
the County’s lack of previous
experience with document maintenance
in SB172 proceedings.
No
comprehensive listing of
the items comprising
the County Record
exists.
The County hearing record does not adequately describe
all of
the exhibits admitted there.
To the extent
that this
record contains any systematic attempt
to detail the contents of
the record,
it
is contained
in BFI’s
Brief,
p.
3—13;
the Board
appreciates this effort.
69-4
—5—
A portion
of the County’s record was submitted by the County
Clerk on January 14.
The documents listed
in the “Certificate of
Record”
are not marked by exhibit numbers or any other number.
By filing
of January 21,
an additional public comment was
submitted which
had been inadvertently omitted
from the earlier
filing.
On February 14,
the Clerk submitted an “Amended
Certificate of Record” which does not list the January filings,
but which
lists additional materials either by exhibit numbers or
description; the
list contained inaccuracies.
Additional
items
which were considered
by the County
in making its decision and/or
which had been admitted
as exhibits
at
the County hearing were
introduced as exhibits at this Board’s hearing.
After
the
Board’s hearing, two additional BFI exhibits admitted
at the
County hearing were transmitted
to the Board.
One was received
from BFI on March
20.
The final exhibit was not received until
March
27.
BFI filed
its application for
site location suitability
approval on June
27.
Notice
to adjoining landowners and
legislators was initiated on June
12,
1985, via certified mail,
return receipt requested.
Some notices were received by the
addressees on June
13, others through the balance of June,
arid
some apparently not at
all
(County Rec.,
Pet.
Ex.
l).*
On June
14,
a newspaper notice
of intent
to file the request was
published
in the News—Democrat.
The notice bore
a June 12 date
and
stated that Browning—Ferris intended to file
its request
on
June
28, 1985
(Id.,
Pet.
Exh.
2).
(But
see Id., Pet.
Exh.
17
in
which
BFI’s letter to IDOT re criterion
4 indicates an
anticipated June 27
filing date.)
The
St.
Clair County Board
has an Environment Committee
consisting of
7 of the 30 County Board members.
The Committee
held
a public hearing
in
the Jury Assembly Room
of the St.
Clair
County Courthouse
in
Belleville, Illinois, on September
24,
1985,
with six Committee members attending.
The hearing began at some
time between 7:00 and 7:30 p.m.,
and ended at some time between
2:00 and 2:30
a.ni.
the following morning.
The official
transcript was recorded
on
a tape recorder by Dick Weilmuenster,
Director of Land Development, and typed
on legal—sized paper,
consisting of 114 typewritten pages and 9
sign—in sheets.
Mr.
Weilmuenster also was the person who swore
in witnesses.
A court
reporter employed by BFI was also present at this public hearing,
and
her transcript appears
in the record as City Exh.
F.
The
Board
notes that the official
transcript
is not as complete as
the unofficial version,
in that portions of sentences were lost
when tapes were changed
(see,
e.g.,
Id.,
Tr.
at
38,
54,
104), as
well
as longer passages
of testimony for
reasons the official
*
Items contained
in
the County Record will be referenced
as
“County Rec.”
followed by an abbreviated form of the item’s
description
and page number
if necessary,
e.g.
“Transcript.
p.
104”,
“Pet.
Exh.”.
References
to the record amassed by the Board
in
this appeal will
be
to “PCB Rec.”
followed
by “Tr.”
or “Exh.”
69.5
—6—
version does not indicate
(compare Id., Tr. at
p.
104 with, PCB
Rec., City Exh.
F
at 215—217;
the latter contains about
1 1/4pages
of testimony not appearing
in
the official version)
The Jury Assembly Room
is the largest
room in the County
Building
and
the immediate area; testimony
at
the Board hearing
indicated that there may be
a larger hail somewhere in the County
(Id.,
Tr.
80—82,
141).
While estimates varied,
it would appear
that some 300—400 persons arrived
to attend the hearing,
75
or
so
of whom could not fit into the room and listened from the hallway
(Id.,
Tr.
46,
161).
Of those in
the room,
only about
175 had
seats
(Id.,
Tr.
44—45,
166).
One citizen described the
room as
“extremely crowded”
and “hot”
(Id.,
Tr.
148).
There was
a voice
amplification system provided
in the room,
but probably not in
the hallway
(Id.,
Tr.
82).
At
the commencement
of
the hearing,
it was established
that
first BFI would present its application and answer questions
thereon
(but only from members of the Committee,
the State’s
Attorney acting
as Hearing Officer,
and any attorneys),
that next
presentations would
be made
by groups represented
by attorneys,
and that finally statements
and questions
from others would
be
received subject
to
a two—minute time limit
(which, however, the
hearing officer could
extend at his discretion)
(County Rec.
Tr.
at
3—4).
BFI presented
four witnesses and some
22 exhibits.
This
presentation and the cross—examination thereon lasted until
about
11:30
p.m.
(PCB.
Rec.,
Tr.
47).
Various objectors
to
the
landfill, including the City, who were represented by attorneys
presented
13 witnesses and some 25 exhibits.
These presentations
and cross—examinations thereon lasted
until about
1:30 a.m.
(Id.).
Ten citizens then asked questions
and presented
statements;
the Board
notes that these citizens were not placed
under
oath, although persons sponsored by attorneys were so
sworn.
There
is indication
in the testimony at the Board hearing
that additional citizens wished
to speak
(Id.,
Tr.
155,
158,
161),
but this portion of the hearing ended
upon the Hearing
Officer’s announcement of the Committee’s direction that the two
persons then standing
in line would
be the last citizens
to
speak.
Closing arguments,
including one under oath, were made by
the attorneys.
The City’s attorney asserted that
a
180 day
deadline applied
to the matter; BFI did not object or assert
otherwise
(County Rec.,
Tr.
112—113).
The City also announced
its
intent to file additional documents
in response to the
technical data presented by BFI at hearing.
Between September 25 and October 25,
a number
of written
comments were filed with the County Clerk, most of them being
letters
from citizens residing
in either Monroe or
St. Clair
Counties, petitions
signed by persons residing
in
those areas,
and other writings.
Two written comments, offered by the City at
69-6
—7—
the Board hearing
as City Exhibits A and B,
appear
to have been
relied upon concerning
the need and traffic findings.
They are
briefly summarized
as follows:
City Exhibit
A:
On October
23,
1985,
the City filed
a
letter stating that its consulting
engineers, Russell and Axon,
Inc.,
had reviewed all of the evidentiary exhibits
filed by EFI,
and had determined
that BFI failed
to present evidence of a
design
for traffic patterns
to and from the proposed landfill
so
as
to minimize the impact on existing traffic flows.
The City of
Columbia formally objected
to the grant of site location
suitability approval.
Attached
to the letter
is
an Evidence
Affidavit of Wiliam 0.
Haag,
Jr.,
P.E. presenting various facts
concerning
the traffic issue.
City Exhibit
B:
On October
24,
1985, Attorney James Yoho,
representing various objectors,
filed
a document entitled
“Comments
in Opposition
to
the Request
for Site Approval,”
in
brief
form,
accompanied by an Affidavit signed by John
Thompson.
The Thompson Affidavit concentrates mainly on the
first criterion
(whether the facility is necessary)
,
and states
in summary that there
are approximately 10.7 years of capacity
left
in the service area,
as opposed
to the
5 year estimate
presented by BFI at hearing.
The Environment Committee held
a meeting
on October
22,
at
which
it voted
to approve BFI’s request
in all respects
(PCB.
Rec.,
BFI Ex.
A
&
C).
BFI’s application was then considered
by
the full County Board at
its October
28 meeting.
A motion was
passed
to send the matter
“back to
the Environment Committee
for
further study
and also
an independent source
to do
a
study of
the
landfill’s
life expectancy
in
St. Clair
County”
(PCB.
Rec.,
City
Exh.
D).
The Environment Committee held another meeting
on November
19.
The Thompson information on the need question was
specifically mentioned
by at least one member
of the Environment
Committee as one reason
for changing his vote, and urging that
others also do the
same.
The Committee voted
to deny its
approval
to the application, reversing its former opinions on
Criterion
1,
“need”
and Criterion
6 “traffic”,
(Id.,
BFI Ex.
B).
At the County’s November
25,
1985 meeting,
the County
adopted Resolution No.
2l9—85—R,
rejecting BFI’s application for
failure to satisfy the “need” and “traffic” criteria
(PCB.
Rec.,
City Exh.
E).
(The
record does not indicate whether the study
called
for at the October meeting was submitted
to or
relied upon
by the County Board.)
STATUTORY AMENDMENT TO SITING PROCEDURES
The siting procedures established
by P.A.
82—682 were
modified by P.A.
83—1522.
P.A.
83—1522 became effective July 1,
1985;
as aforementioned, BFI filed
its application June
27,
69-7
—8—
1985.
In summary,
the Board finds that P.A.
83—1522 establishes
the procedures
to be followed
in this action.
The Board further
finds
that the County took action within
180 days of the filing
of the application.
Therefore,
BFI may not deem its application
approved pursuant
to Section
39.2.
The respective provisions of these two public acts are
summarized below insofar
as they are relevant
to this action:
Requirement
P.A.
82—682
P.A.
83—1522
Filing period for
Postmarked within
Postmarked
written comments
30 days of
filing
within 30 days
Sec.
39.2(c))
of application*
of last public
hear ing
Time
for holding
Within
60 days
No sooner than 90
public hearing
days of filing
or
later than 120
Sec.
39.2(d)
of application
days of filing of
application
Time
for county
Within 120 days
Within 180 days of
decision
of filing
of
filing of
Sec.
39.2(e)
application
application
On
the issue of whether
a
120 day deadline
or
a
180 day deadline
applies,
EFI argues that the old statute applies
to
an
application filed before
the effective date of the new statute
which modifies
it, while the City argues
to the contrary.
The Board
notes
that
it
is arguable that the Board
is
addressing
this issue either out of order or gratuitously,
since
a finding
that the County lacked jurisdiction
to consider BFI’s
application due
to notice deficiencies arguably moots
the issue
of what decision deadline applies.
However, the Board
finds
it
essential to address this issue here, given that the question of
which statute applies
a)
is inextricably interwoven with
sufficiency of notice issues, and b)
is one which the Board would
address even
if moot to avoid
the delay and expense of
a remand
to the Board
for consideration of this procedural
issue
in the
event of appellate reversal
of the Board’s decision on
the
jurisdictional
issue.
As
a final
introductory note,
the Board
also observes that statutory applicability arguments are
contained
in legal briefs
filed by the County on January 9,
1986
and
by BFI January 10 and
21,
in addition to those
in all
parties’
closing briefs.
P.A.
83—1522 contains no explicit legislative directive
as
*
Note, however,
that
the Board has not construed
this provision
as precluding the county from considering late—filed comments.
See Browning—Ferris md. of
Ill.
v.
Lake County Bd.
of
Supervisors, PCB 82—101, December
2,
1982 at
p.
6.
69.8
—9—
to
its applicability to applications filed before
its effective
date and still pending after
its effective date.
The parties are
in general agreement that in the absence of legislative
direction,
the only statutes which can be given retroactive
application are those which are procedural
in nature, and whose
retroactive application
to matters pending before the effective
date would
not impair
or
remove
a vested
right.
However, as
acknowledged by the Supreme Court
in Orlicki
v.
McCarthy,
4
Ill.2d
332,
122, N.E.2d 513
at
515, 516
(1954)
in
a scholarly
dissertation on the legal
history of the issue,
“no simple
formula can be evolved
as
to when an amendment relates to
a
procedural,
or
to a substantive right
(sic)”,
while the “concept
of
‘vested right’
is fraught with vagaries that defy precise
definition”.
In Orlicki,
the Supreme Court was called upon
to
construe the retroactivity of an amendment
to a “dramshop”
act,
which
reduced the time for
filing of an action against a saloon-
keeper by the survivors of the deceased drinker
from
5 years to
2
years,
and imposed
a limit on the amount of money damages.
In
analyzing the case,
the Supreme Court determined that the
legislature which had created the rights to
a cause of action
could
repeal
or amend those
rights.
The Court looked
to the
intent of the legislature
as derived both from the language of
the statute,
as well “as the evil to be remedied”, while
alternatively finding that even
if legislative
intent could not
be determined,
that the statute
should be retroactively applied
on the basis of “substantial precedent holding such time
limitation amendments
to be procedural
in character.”
122 N.E.2d
at 518.
Employing
a similar mode of analysis,
the Board notes that
the right of
a
120 day “deemed
issued” approval contained
in P.A.
82—682
is
a right created
by the legislature
to remedy the evil
which an applicant could suffer by way of a local government’s
failure
to make
a prompt decision on
a pending application.
It
is to be noted
that the effect of that right may be draconian;
all local approval rights may be extinguished even
in the absence
of bad faith,
where,
for
instance,
a county may lack a quorum or
may deadlock.
The nature of the amendments
to that original act
contained
in P.A.
83—1522
indicate that the legislature sought
to
remedy new evils recognized
from the experience gained
in the
implementation of the original act:
that the 120 day time frame
was too
tight to allow adequate public participation and
the
resulting fully informed decision—making by the County.
In P.A.
83—1522, the public’s comment period was extended from 30 days
to
between 120 and 150 days,
while the public’s time
to prepare
for
hearing was extended from 60 days
to between 90
and 120 days;
the
extension of the decision deadline flows from the extension of
the comment period.
The Board
finds that retroactive application of the
180 day
period of
P.A.
83—1522 only defers,
for 60 days,
an applicant’s
ability
to assert an application
is deemed
approved;
it does
not
destroy the right which accrues or
“vests”
in the event of
government
inaction.
The
Board
further
finds that, given
the
69.9
—10—
nature
of the evil
to be remedied——lack of adequate time for
participation——that the legislature
intended retroactive
application of this statute.
The Board
is not persuaded
by BFI’s
argument that the several months delay
in the
time between the
signing of
the public act and
its stated effective date indicates
contrary intent.
Finally,
even if the intent of the legislature
cannot be determined,
the Board
finds
that P.A.
83—1522’s
limitation of a previously created right
is akin
to the time
limitation found
to be procedural
in Orlicki
(in which
the right
to assert
a cause of action was shortened by
3 years), and finds
the act
to be procedural
in nature.
Even
if the Board has mischaracterized P.A.
83—1522 as
procedural
in nature
and wrongly applied
it retroactively as
a
matter
of
law,
the Board
is persuaded by the City’s arguments
that as
a matter
of equity, BFI must be estopped from the
assertion that the shorter time period of P.A.
82—682 applies.
Throughout
the course of
the proceeding before
the County, BFI
acted
in
a manner
suggesting acquiescence
in the applicability of
P.A. 83—1522.
BFI’s newspaper notice stated that public comment
rights were those post—hearing rights listed
in P.A.
83—1522.
The record reflects no objection by BFI
to
the scheduling
of
hearing on the 90th,
rather than the 60th, day following
its
application.
At close of hearing, BFI’s attorney responded to
a
question concerning comment rights that
a participant “does have
30 days under statute
to file any other documents”
(County Rec.,
Tr.
113,
see also 39).
Under these
facts,
the Board
finds that
estoppel must lie, applying “the broad concept that
a party whose
own conduct contributes or causes another
to commit an
irregularity in judicial procedure, cannot
later
twist that
irregularity to his own advantage”
In
Re Rauch,
45
Ill. App.3d
784,
359 N.E.2d 894,
896
(1977)
(appeal
allowed
to proceed where
all counsel agreed
to order purporting
to extend statutory appeal
period).
COUNTY JURISDICTION AND ADEQUACY OF BFI’s NOTICE
In summary,
the Board
finds that
the County lacked
jurisdiction to consider BFI’s application on the grounds that a)
BFI filed
the application with the County 13 days after
newspaper
publication of the notice of intent
to file, rather than the
14
days required by statute, and
b)
BFI did not initiate service of
notice to landowners within
a reasonable time before the
application’s filing.
Newspaper Notice
The City essentially argues that the County did not have
a
valid, complete application before
it over which
to exercise
jurisdiction, because
of the one—day deficiency in
the notice
period.
The City asserts that the controlling case here
is Kane
County Defenders,
Inc.
v.
IPCB,
_____
Ill.
App.
3d
_____,
487
N.E.
2d 743
(1985).
69.10
—11—
In the Kane County case,
the Elgin Sanitary District
(ESD)
filed its application August
11, 1983.
Newspaper notice was not
published
until August
10.
However, as this notice stated only
that the application would be filed “within
14 days”, ESD
published
a new notice on August
20 which
stated
the date the
application was filed,
the last date of the comment period,
and
the date of the public hearing.
The petitioners in that case
argued that the 14 day notice provision of paragraph
1 of Section
39.2(b)
(individual notice to land owners)
applied
to paragraph
2
(newspaper notice),
and that ESD violated the notice provisions,
“thereby substantially shortening
the length of
the comment
period available
to the general public”.
The Board takes
administrative notice of the fact that, had notice been published
14 days
in advance of
a specified filing date,
the public would
have had 44 days
to consider and
to formulate written comments;
because notice of the filing date,
from which the comment period
ran, was
not published
until August 20,
the period was
effectively reduced from 44
to 22 days.
The Appellate Court for
the Second District held that “ESD’s
failure
to publish appropriate newspaper notice
and notice of the
date
it filed
the
site location request rendered the county board
hearing
invalid
for lack of jurisdiction”, finding the notice
requirements of Section 39.2(b)
to be “jurisdictional
prerequisites which must be followed
in order
to vest
the county
board with the power
to hear
a landfill proposal”.
In reaching
this result,
the court applied
the reasoning employed by the
Third District Appellate Court
in Illinois Power
Co.
v.
IPCB,
137
Ill.
App.
3d
449,
484 N.E.2d 898
(1985).
In Illinois Power,
in a
situation where
the Board
had
failed to give both the
21 day
notice
to individuals and the newspaper notice
to the general
public
required by Section 40(b),
the Court
found that the
statutory notice requirements were jurisdictional, given the
statutes’
use of the mandatory term “shall”, and the general
principle that an administrative agency derives power solely from
its enabling statue.
In Kane County,
the Second District asserted
the Illinois
Power rationale applied “even more strongly” because
“The
broad delegation of adjudicative power
to the
county
board
clearly
reflects
a
legislative
understanding
that
the
county
board
hearing,
which
presents
the only opportunity
for public comment on
the proposed site,
is the most critical
stage of the
landfill
site approval process.
We find support
for
this view also
in
the statutory notice
requirements
themselves,
which
are more demanding
at
the county
board
phase
of
the
process.***
The
notice
requirements
are jurisdictional prerequisites which
must
be
followed
in order
to
vest
the county
board
with
the
power
to
hear
a
landfill
proposal.
(citations omitted)”.
69-11
—12—
The Board notes that the
facts
in Kane County are
distinguishable
from the facts presented here.
P.A.
82—682
governed that proceeding;
P.A.
83—1522 governs these.
There,
ESD
reduced comment rights by half to 22 days in
a situation where
written comments could
be filed only in advance
of hearing.
Here,
BFI truncated the notice period by one day
in
a situation where,
due
to the change
in statute,
the comment period
lasted 120 days
and comment rights existed before
and after hearing.
However,
given
the Kane County finding that compliance with notice
directives
is jurisdictional, the Board must find that even a one
day failure of newspaper notice rendered BFI’s application
deficient, with the result that all proceedings before the County
are voided.
The Board notes
that it could be argued that there
is an
inconsistency between the result reached here and the result
reached
by the Board
in McHenry County Landfill,
Inc.
v.
County
Board
of McHenry County, PCB 85—192
(March
14,
1986).
That case
also involved appeal of
a county decision on site location
suitability pursuant
to SB172.
There, this Board
had mailed
a
request
for publication of notice
to
a newspaper on June
28, one
day after
the hearing date was established.
Notice did not
appear
until July
5.
The result was publication of
a
20 day
notice instead of the
21 day notice established
in Section
40.1(a).
The landfill applicant asserted that the Board hearing
was
therefore invalid and
that his application should
be deemed
approved pursuant to Section 40.1 for failure of the Board
to
take action.
The precedents cited were the cases discussed
above:
Illinois Power
and Kane County.
The Board’s decision
in this case
is entirely consistent
with that
in McHenry County, and does not reflect application of
a “double standard”
to actions by the applicant versus
those by
the Board.
Rather,
the rationale here
is that the intent of the
Act is
to provide
a mechanism and
a county or municipal forum
for
the consideration of site location suitability issues.
Where an
alternative mechanism for resolution
arid review of an issue
exists,
e.g.
filing of
a new application,
a party may be held
to
the letter of the law, when that party alone
bears
the burden of
any omission.
Where
a slight omission may substantially impair,
if
it does not extinguish,
a right of a party who bears no
culpability, e.g.,
a deemed
issued approval,
the Board must look
to the spirit of the law.
The Board notes that its finding on the newspaper
notice
issue
is dispositive of the case.
However,
all remaining
procedural
issues are being
considered
a)
to provide guidance
in
the event BFI refiles
an application,
and
b)
to avoid any
potential appellate remand
of this case
to the Board
for failure
to address procedural
issues.
69.12
—13—
Notice
to Landowners
Section
39.2(b)
requires that “no
later than 14 days prior
to
a
request
...
the applicant shall cause written notice of such
request
to
be served either
in person or by registered mail,
return receipt requested”
to neighboring landowners and members
of the General Assembly.
The City asserts that BFI’s notice was
defective because examination of the registered mail return
receipts reveals
that, while all notices were mailed June 12,
some landowners received the notice
later
than June 13
(the 14th
day prior
to the application’s filing), some receipts were signed
by persons other
than the addressee,
and some notices may not
have been delivered at
all.
See PCB Rec., BFI Gr.
Ex.
1 and Tr.
203.
The City asserts that the statute must be read as requiring
that all
notices be received
by the individuals
to which they are
addressed.
In support thereof, the City cites Cutler
v.
Leoder
Cleaners,
12
Ill. App.
2d 439,
139 N.E.2d
832,
935
(1957), where,
in the context of construction of
a pleading concerning notice of
a breach
of
a lease,
the court
found
that an allegation that
notice was “served” was equivalent
to an allegation that notice
was “received”
since “proper service of a notice implies receipt
thereof”.
The Board notes
that
in Section 101.105 “Computation
of
Time”
of the Board’s procedural
rules,
in subsection
(b)
the
Board has provided that:
“Notice
requirements
shall
be
construed
to
mean
notice
received,
but
proof
that notice was
sent by
means
reasonably
calculated
to
be
received
by
the
prescribed
date
shall
be
prima
facie
proof
that
notice was timely received.”
The Board will not,
at this time, construe
the “cause
to
be
served”
language of Section 39.2 of the Act as absolutely
requiring that notice
be received by all parties
14 days prior
to
an application’s filing.
To
so hold could, as a practical
matter, prevent or greatly delay an application being considered
by a county because of
an applicant’s inability
to perfect
notice:
an opposing landowner could frustrate,
or cause endless
renoticing
of, the
filing
of an application by refusing
to
receive or pick—up mail or by evading personal service.
However,
the Board does construe the Act as requiring that service of the
notice be
initiated sufficiently far
in advance
to reasonably
expect receipt of notice 14 days
in advance of the filing of a
notice.
BFI’s initiation
of registered mail service on
the
15th
day in advance of the filing date was unreasonable under
the
circumstances;
in Section 103.123(b)
of the Procedural
Rules,
the
Board does not presume its service by first class mail complete
until four days after mailing.
Service was therefore defective
for this reason.
The Board does not find service defective because
a person
other
than the addressee received and signed
for
the notice:
the
69-13
—14—
Board presumes proper delivery of the notice by the Postal
Service
to
a householder.
Content of
the Notice
The newspaper notice published by BFI stated that the
application would be filed June
28, whereas
it was filed June
27.
The notice was misleading
and
therefore defective.
Otherwise,
the content of the notice meets the requirements of
Section 39.2(b);
the collateral
and incidental mention of the
public hearing was not deficient.
The Board rejects the City’s
inherent contention
that the notice must contain
the date of the
public hearing.
The statute does not require this by its
terms.
Additionally, as
a practical matter,
to
so require could
frustrate public participation:
a hearing date mutually
convenient for
all who wish to participate cannot be arrived at
before the
identity of potential participants
is known.
FUNDAMENTAL FAIRNESS
In summary, the Board
finds that some aspects of this
proceeding were fundamentally unfair.
Were the Board not
required
to vacate
the County’s decision on the grounds that
notice defects deprived the County of jurisdiction, the Board
would be required
to remand this action to
the County to cure the
unfairness.
Hearing room size, late hours, restrictions on cross examination
and public comment time
The City challenges
the fairness of the hearing
on various
grounds,
including the hearing room’s lack of seating capacity,
completion of the hearing
in the early morning hours,
and the
restrictions
on public comments and questions.
Even
if,
arguably, no single one
of
the above factors would have rendered
these proceedings fundamentally unfair, certainly
in combination
these
factors had
a “dampening and prejudicial effect on.
-
.
the
hearing attendees”.
Board of Trustees of Casner Township et al.
v.
County of Jefferson and Southern Illinois Landfill,
Inc., PCB
84—175, April
4,
1985,
at p.
9
(remanding
a similarly flawed
proceeding
for cure of the hearing deficiencies).
The Board
appreciates the County’s logistical dilemma in finding
a new room
for
a hearing when faced with overflow crowds, and does not find
it unreasonable that hearing was commenced.
However,
failure to
recess at
some point
and continue the hearing
to another
time was
unreasonable, given the fact that persons who were not sponsored
by attorneys could not begin
to speak until approximately 1:30
a.ni., and the number of,
and time available to,
persons who could
speak was restricted without warning.
The Board agrees with the
County that the record does not reflect that a continuance was
asked
for.
However,
it also does not reflect that the option was
presented by the County,
and non—attorneys
in particular may not
have been aware of the option.
In any event,
the absence of such
a request does not relieve the County from exercising
its
69.14
—15—
responsibility to take the initiative.
In this case, moreover,
the County clearly signaled its intention
to conclude the hearing
that night.
There
is no demonstration
in this record
as to whether
citizens had an opportunity to make their statements under oath
and chose not to do
so,
or whether citizens were simply not given
the opportunity
.
It would be fundamentally unfair
to create two
classes of testimony:
sworn testimony sponsored by attorneys,
and unsworn
testimony by others.
Lack of affiliation with an
attorney is no ground
to establish
a procedure where
a)
a
citizen’s testimony, must be given lesser weight because it is
unsworn and therefore inherently less credible
in the scheme of
the judicial system, and
b)
a citizen’s questions are considered
to be of secondary importance.
The intent of the SB172 procedure
is
to allow for equal participation on the same
footing by all
persons who may be affected
by the siting
of
a facility.
County Reliance On Facts Not Presented At Hearing And
Ex Parte
Contacts
Section 39.2(c)
of the Act provides
in pertinent part,
that
“Any person may file written comment with the county
board.
.
.concerning
the appropriateness
of the site
for its
intended purpose.
The county board
...
shall consider
any
comment
timely
received..,
in
making
its
final
determination”
(emphasis
added).
BFI
presents
a
question
of
first
impression
to
the Board:
the meaning
of
the words “public comments”
in
a
quasi—adjudicatory
proceeding.
BFI argues that it was fundamentally unfair
for the County
to have relied on “evidence” submitted
in affidavit form
submitted after
hearing
in the closing days of the written
comment period.
BFI asserts that,
in quasi—adjudicatory
proceedings such as the courts have held these
to be, “nothing
may be treated as evidence which has not been introduced
as such
and
incorporated
into the hearing record.”
73A CJS Public
Administrative Law and Procedure Section 126
(1983).
BFI
contends that:
“what SB172
refers
to when
it permits members of the
general public
to
file
their own “written comments”
is
arguments
about
what
the
evidence
at
the
public hearing
shows
or does
not
show.
...
Tjo
the
extent
that
written
comments
purport
to
be
evidentiary
in nature,
they are highly objectionable
since
they are
typically unsworn statements by out—
of—court
declarants
and
thereby
constitute
hearsay.
Putting
the comments
in
“affidavit”
form
does not make
them
evidence, nor does it cure the
due
process
objection
that
the
other
side
has
no
opportunity
for
cross—examination.”
(BFI
Brief
of
3/14/86 at
p.
20—21).
69-15
—16—
The Board does not find
that factual material cannot be
submitted during
the comment period.
To do so would negate the
legislative intent expressed in Section 32(c)
as revised by P.A.
83—1522 that there be
an opportunity for comment both before
and
after hearing.
Had
the legislature intended post—hearing
comments
to be restricted
to legal briefs concerning the weight
of the evidence produced
at hearing,
as BFI urges,
the
legislature would have so stated.
On the other
hand, fundamental fairness/due process
considerations are likely to preclude the County from giving the
same weight
to written comments and any facts contained therein
as it might give
to statements made at hearing under oath which
are subject
to cross—examination.
The fair weight
of written
comments must be determined by a local government in the context
of the proceeding considering
all applicable factors, including
the nature of the comment,
time of filing
and ability of other
individuals
to respond
to the comment.
In this case,
the Board
will not determine what weight,
if any,
the County could fairly
have given
the Thompson and Haag affidavits1 as to do so would
require the Board
to evaluate the merits of the evidence
concerning
a defective application.
The City asserts that ex parte contacts have taken place
between county board members and various individuals concerning
BFI’s application.
One such contact was admitted by the board
member who, on November 19,
urged
the Environment Committee
to
reverse the approval
it
had given on October
22.
This board
member
advised his colleagues
that, “This morning
I met with
members of
Dupo and members of the Dupo Village Board that were
available, and they concur with this action.”
(PCB Rec., BFI Ex.
B.)
In deliberating the effects of ex parte contacts,
the Board
must consider
“whether,
as
a
result
of
improper
ex
parte
communications,
the.. .decisionmaking
process
was
irrevocably
tainted
so
as
to
make
the
ultimate
judgment.. .unfair, either
to an innocent party or
to
the public
interest
that
the
(local government
was
obliged
to protect.
In making this determination,
a
number
of
considerations
may
be
relevant:
the
gravity
of the
ex parte communications;
whether
the
contacts
may
have
influenced
the...ultimate
decision;
whether
the
party
making
the
improper
contacts
benefited
from
the...ultimate
decision;
whether
the
contents
of
the
communications
were
unknown
to
opposing
parties,
who
therefore
had
no
opportunity
to
respond;
and
whether
vacation
of
the.. .decision
and
remand
for
new proceedings would
serve
a
useful purpose.”
E&E Hauling,
Inc.
v.
PCB,
111
Ill.App.3d
586,
451.N.E.2d
555,
587
(1983),
citing
PATCO
v.
Federal
Labor Relations Authority,
685 F.2d
547,
564—65
(D.C.
Cir. 1982).
69-16
—17—
The City has not developed its arguments concerning
ex parte
contacts fully enough
to allow the Board
to make findings using
this standard.
However, the Board must note that this
is the
most serious and offensive of the contacts alleged.
The nature
of the issue
is grave:
whether
the seven—member Committee,
in
part based upon Dupo’s approval of
a reversal, should
reverse its
prior recommendation to the
full Board
of thirty members.
The
possibility that this contact affected the outcome of the vote of
the full County Board
is high,
as the content of the
communication was passed
to at least the seven Committee members.
Another
alleged
ex parte contact involved two Board Members’
attendance at
a public meeting held
in the Village of Dupo on
October
17,
1985.
At this meeting, Dupo requested that BFI
present
information about
its application (PCB Rec,.
Tr.
123—
127).
Board Members
asked questions and spoke
at the meeting.
This meeting occurred after
the County’s hearing, before the
close of
the comment period.
Again, Board Members were
potentially receiving information not contained
in the record,
and were participating
in
ex parte discussions.
Attendance at
this meeting was
iniperrnissible,
although the Board will make no
finding
that this alone would
require reversal
of
the County’s
decision.
The Board notes
that at hearing the County asserted that
it
was
“ludicious, asinine,
and unbelievable”
to suggest that Board
Members had acted improperly,
since “elected
officials are
expected
to respond to the public.
If they don’t attend public
hearings as an elected official, they would
be saying we don’t
want
to hear what you have to
say,
those people don’t care what
we have
to
say.”
(PCB Rec.,
Tr.
211)
While
the Board has had
a long—standing appreciation of the
local officials’
practical problem, the courts have interpreted
SB 172 as quasi—adjudicatory in nature.
This requires the
elected officials to operate
in
a judicial mode.
While
an
application
is pending the officials must restrict themselves
from otherwise usual
constituent contacts and must refrain
from
tapping otherwise available information sources; no information
can be utilized which
is not in the record
for all
to see and
refute.
Finally,
for similar reasons,
it was improper for
the
Environment Committee
to open up its November 19, 1985 meeting
for public comments after
it made its initial vote
to deny but
before
it reconvened
to
take a roll call vote
in response
to
these comments.
(PCB Rec.
Tr.
74—80)
The meeting was not
noticed as
an open one at which the public could participate,
no
representative of BFI was present,
and the committee members had
yet
to vote on the application
in their capacity as
Board
Members.
This sort of procedure was termed
an
ex parte contact
by the court
in E&E Hauling, supra.
69-17
—18—
RECORD SUFFICIENT TO FORM THE
BASIS
OF
APPEAL
The final issue
the Board must address
is the condition of
the County record.
Section 39.2(d)
requires the County to
develop
a record sufficient
to form the basis of appeal;
Section
40.1(a)
requires the Board
to consider that record.
If the Board
and any subsequent reviewing court
is to determine whether the
County’s decision was consistent with the manifest weight of the
evidence, the County must promptly submit
to the Board,
in
organized fashion, all materials which it received.
The Board is
still unsure that this has occurred,
even after
the filing of
various supplements
to what was originally certified as the
County Record.
First,
as to
the hearing transcript,
the Board appreciates
that it is more economical for the County
to itself tape record
and later transcribe
a hearing, than to retain
the
services of
a
shorthand reporter.
Tape recording
and transcription are not per
se objectionable, provided that the resulting transcript
is as
complete and accurate as that which would be supplied by
a
shorthand reporter.
As earlier noted,
this one
is
not.
If
a
tape is being made, witnesses must be asked
to stop speaking
while
tapes are changed, and must identify themselves
so that
they can be identified
in the transcript.
Transcript
designations such as “Opposing
Counsel”
and “Man from
Audience” are insufficient.
The record here does not indicate
otherwise, but the County must also insure that the person
administering oaths is authorized
to do
so under state
law.
Next, exhibits admitted at hearing were not properly
identified and described
on the hearing record;
it is unclear
whether
they were properly marked
at hearing.
One result was
that at the Board’s hearing, there was considerable discussion
as
to what had
in
fact been admitted.
Another result was that the County Clerk’s original
certificate of record contained no description
of exhibits;
the
amended certificate was also deficient
in this regard.
The
County Clerk’s certificate of record should
be
a single document
which assigns each item a number
and describes the item:
“Letter
from Millstadt”
is
insufficient without either
a date
of receipt
by the County or reference to the date the letter was
filed.
The
corresponding documents should also be numbered
so that they can
be conveniently located and referenced.
The documents should be
bound
in some fashion to insure
their integrity.
The Board
advises the parties that,
in the event of appeal
of this action,
the Board cannot reorganize
the County Record
for the benefit of
the appellate court, but must transmit the record as
is.
In the
event no notice of appeal
is filed,
the Board will return
the
record
to the County upon its request.
Finally,
the Board must observe that since the proceedings
before the County were void due
to lack of jurisdiction and the
County decision is therefore vacated, the
record here does not
69-18
—19—
automatically carry over
to any subsequent application proceeding
as
it would
if the Board has remanded this application to the
County.
However, this does not prevent formal
resubmission of
any items
in this record
to the County in a new proceeding.
This Opinion constitutes
the Board’s findings of fact and
conclusion of law
in this matter.
ORDER
The November
27,
1985 decision of the
St.
Clair County Board
denying BFI’s June 27,
1985 application
for site location
suitability approval
is hereby vacated,
as
the County could not
exercise jurisdiction over the improperly noticed application.
IT
IS SO ORDERED.
J.
T.
Meyer concurred.
J.
D.
Dumelle dissented.
I, Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certifies that the aboye Opinion and Order was
adopted
on the
~‘~
day of
(24t-’t~-’
,
1986, by
a vote
of
~-7
.
//
/
/
-7
~
Dorothy
M.
turin, Clerk
Illinois Pollution Control Board
69-19
