ILLINOIS
POLLUTION CONTROL BOARD
November
19, 1987
CITY OF ROCKFORD,
a Municipal Corporation,
Petitioner,
vs.
)
PCB
87—92
WINNEBAGO COUNTY BOARD,
)
Respondent,
RONALD M.
SCHULTZ AND DOUGLAS
P.
SCOTT
CITY
OF ROOKFORD
DEPARTMENT OF LAW,
APPEARED ON BEHALF
OF’ PETITIONER;
GARY
L.
KOVANDA, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF
OF RESPONDENT; AND
MICHAEL F.
KUKLA
COWLIN
UNGVARSKY,
KUKLA AND CURRAN
APPEARED ON
BEHALF OF SAVE THE LAND,
INC., RICHARD BROWN, EDWARD BROWN,
MELVIN BANKS, WARD MERCER,
LORENZO CAPES, ARMEN SWANSON,
LEE
CARLSON,
BETTY CARLSON, ORVILLE QUANTO AND DOROTHY QUANTO.
OPINION AND ORDER OF THE BOARD
(by J.
Marlin):
This matter comes before the Board on the June
29, 1987
petition by the City
of Rockford
(City)
for review of
a decision
by the Winnebago County Board
(County) denying
an application for
site location suitability approval of
a new regional pollution
control
facility.
This case accordingly involves construction
and application of Sections
39.2 and 40.1
of the Illinois
Environmental Protection Act (Act),
Ill.
Rev.
Stat.,
ch 111 1/2,
pars.
1039.2 and 1040.1
(also commonly known
as SB172).
For the reasons expressed below,
the decision of the County
Board
is vacated and the proceeding
is remanded back to the
County Board.
PROCEDURAL HISTORY
On December
4,
1986, the City of Rockford filed
an
“Application
for Location Approval of a New Regional Control
Facility” with the Winnebago County Clerk
in accordance with
Section 39.2(c)
of the Act;
notice was given
as required by that
section.
The City’s application was for
a new landfill containing
approximately 155 acres
to be located
at the northeast corner of
Baxter and Mulford Roads
(Baxter and Mulford site).
The proposed
83—47
—2—
landfill would accept municipal non—hazardous waste from
Winnebago County residents
for approximately 19.6 years.
Pursuant to Section
39.2 and
its own Ordinance implementing
that Section,
the Winnebago County Board
(County) held
17 public
hearings on March 8,9,10,16,17,18,23,24,25,31
and April
1,2,5,6,7,8
arid
13,
1987.
At least some of these hearings were
televised.
These hearings were held
at the Cherry Valley
Township Garage
in Winnebago County.
The hearing was conducted
by the County’s Zoning and Planning Committee,
and was chaired
by
Peter MacKay,
the Committee Chairman.
The City called
a total
of
seventeen
(17) witnesses,
who gave testimony concerning
all six
criteria
of Section 39.2(a).
Save the Land,
Inc.,
(STL),
an
objector group, called ten
(10) witnesses,
who discussed criteria
(ii),
(iii)
and
(v)
of Section 39.2(a).
Additionally, thirty—
five
(35) members of the public testified.
At hearing, attending
County Board Members called no witnesses,
and asked
no questions
of any witness.
At the conclusion of the hearings,
a written
public comment period was established to end May 13,
1987.
The Zoning and Planning Committee
(Committee) met on April
22 and May 13,
1987,
to examine written comments;
a meeting
scheduled
for
this purpose on May 6 did
not meet due
to lack of
a
quorum.
The Committee met again on May 18,
1987,
to deliberate
over the evidence
collected during
the public hearings.
The
Committee
formulated recommendations
on each of the criteria to
be forwarded
to the full County Board.
The Committee
recommended
that the County find that criteria
(i)(ii)
and (iii)
had not been
satisfied,
and that criterion
(iv)
had been satisfied.
The
Committee deadlocked on the question of whether criteria
(v)
and
(vi)
had been met, and so
submitted alternative language
to the
County to be used
to support whichever conclusion prevailed.
On May 21,
1987,
the County Board held
a meeting of the
Committee of the Whole,
in the County Board Chambers.
At this
meeting,
the recommendations
on the six criteria promulgated by
the Zoning
and Planning Committee were discussed by the County
Board.
The County Board met again May 28,
1987,
at the Board
Chambers,
and voted to deny site approval,
by voting that
the
City had not met criteria
(i),
(ii),
(iii),
(v)
or
(vi);
the
County Board voted that the City had met criterion
(iv).
The
County’s resolution adopted
and incorporated
the language
supplied by the Committee.
Pursuant to Section 40.1(a), the City filed
its appeal with
the Board.
A hearing was held
in the Winnebago County Board
Chambers on September
1,
1987,
before Hearing Officer Allen
E.
Schoenberger.
Prior
to this hearing,
the Hearing Officer had
issued
a discovery order
allowing interrogatories and depositions
to be taken by the City relating
to fundamental fairness issues.
83—48
At the hearing,
Save the Land,
Inc.,
Richard Brown, Edward
Brown,
Melvin Banks, Ward Mercer,
Lorenzo Capes,
Armen Swanson,
Lee Carlson, Betty Carison, Orville Quanto and Dorothy Quanto,
(collectively STL)
were allowed
to
intervene,
over
the objection
of
the City.
The City called twenty
(20)
witnesses adversely
at
the hearing, nineteen
(19)
of them being current County Board
members,
and one
(1) being
a former Board member.
All of the
witnesses were Board members
at the time of the May 28,
1987,
vote.
Pursuant
to the schedule established by the Hearing Officer,
the City filed
a brief on September
29,
1987, the STL and the
County filed briefs on October
13 and 14,
respectively, and the
City filed
a
reply brief on October 20,
1987.
Finally, the record submitted
by the County on July 22,
l987,* did not contain documentation concerning the meetings of
April
22, May 13, and May 21 held by the Committee,
and did not
contain any indication of
how many or which County Board Members
had voted
in
favor of
the County’s May
28 Resolution.
Following
a conference
call,
by Order of November
5,
1987,
the Hearing
Officer directed
the City and the County
to make an appropriate
filing remedying this deficiency.
On November
9,
1987,
the City
and the County filed
a stipulation of facts concerning the April
22, May 13,18
and
21 meetings,
for which minutes had been
prepared but not approved.
The minutes and
roll calls sheets
for
the County Board meeting of May 28, 1987 were also submitted for
inclusion
in the County Record.
For ease
of reference, the Board
has caused this stipulation to be paginated as C.865—882,
and has
further caused
the Clerk of the Board
to add
a notation
to this
effect
to the County Clerk’s Certificate of
Record.
On November
18,
1987,
the City and the County filed minutes
of the Committee’s April 22,
1987 meeting and of the County’s
Committee
of the Whole meeting of May
21,
1987.
These minutes
were accompanied by
a joint objection
to their
inclusion
into the
record, but no basis
for
the objection was stated.
*
Citations to the record
in this action are made
as follows
1)
references
to the County public hearing transcript are to
“C.
Tr.
___“;
2)
references to exhibits received by the County at
hearing are to “C. App.
Ex.
___“,
etc.;
3)
references
to the
separately bound correspondence and miscellaneous items file are
to
“C.
“
(markings appearing
on the pages
of this volume were
made by the County, not the Board);
4)
references
to the Board
hearing transcript are to “PCB Tr.
___“;
5)
references
to
exhibits received by the Board are
to “PCB Pet.
Ex.
___“.
The
Board further notes that Petitioner’s
Group Exhibits 2,5,
and
6
submitted
at the Board’s hearing
on September
1,
1987
consist of
groups of
unnumbered pages.
For ease of reference
to individual
items
in these group exhibits,
the Board has caused the pages
to
be individually numbered.
~33—49
The Board
assumes
that
the parties’
objection
is not
to
the
relevance of this material,
as
the Appellate Court
for the Second
District has ruled that such transcripts may indeed
be relevant
to issues of fundamental
fairness,
issues which have been raised
by the City here.
Waste Management of
Illinois,
Inc.
v. Illinois
Pollution Control Board, Lake County Board, and Village of
Antioch,
123 Ill.
App.
1075,
463
N.E.
2d
696
(2nd Dist.
1984).
As
a practical matter,
the Board notes
that filings received the
day before decision
is due
in
a case
such as this
(where decision
must be rendered
to avoid
issuance of an SB172 approval by
operation
of
law)
are simply received
too late
to receive
proper
consideration by the Board.
This
is particularly
so, when,
as
today,
the Board has some fifty—odd other
items for consideration
on its agenda.
The Board notes, however,
that a cursory review
of this filing indicates that the information
is cumulative
to
certain evidence admitted at this Board’s hearing
in this matter
without objection.
For these
reasons, the Board will accede
to
the parties’
request
that these minutes not be formally
incorporated
into the County’s record
in
this matter.
The filing
will,
however, physically remain
in the Board’s record for
transmittal
to any reviewing court.
Intervenor
Status
At the outset,
the Board
on its own motion takes
up the
issue
of STL’s intervenor
status.
In McHenry County Landfill,
Inc.
v.
Illinois Pollution Control Board,
154
Ill. App.
3d
89,
506 N.E.
2d
372
(2nd
Dist.
1987), the Appellate Court ruled that
Section 40.1 of the Act does not allow for cross—appeals by
objectors
in cases where
a local government has denied approval
on a finding
that some but not all of the criteria of Section
39.2 have been met.
The Board disagrees with the Hearing
Officer’s
ruling that McHenry County Landfill does not preclude
intervention
in an appeal filed by the applicant before the
Board.
In Waste Management of Illinois,
Inc.
v.
Lake County
Board, PCB 87—75,
(July 16,
1987),
the Board rejected an attempt
to intervene, pursuant to 35
Ill.
Adm. Code 103.142,
in a SB—172
appeal
of
a denial of site location suitability approval.
After
discussing McHenry County Landfill,
the Board,
in its Order,
stated:
As
the
legislature
specifically
refrained
from
providing
the
right
of
third—party
appeals
in
cases
such
as
the
case
at
bar,
appeal
of
a
site
location
suitability
denialj
a
Board
procedural
rule
Section
103.142
cannot be relied on
to provide such.
Consequently, STL will not be afforded
intervenor
status.
The
caption of this Opinion reflects that conclusion.
However,
in
A.R.F.
Landfill,
Inc.
v. Lake County, PCB 87—51
(August
20,
1987), the Board allowed
the submission
of an amicus curiae brief
by an interested person.
Similarly,
the Board will allow and
treat STL’s brief as an amicus curiae brief.
However,
in
its
83—50
brief,
STL
attempts
to
litigate
the
sufficiency
of
the
evidence
supporting
the County’s decision that criterion
(iv),
relating to
flood plains, was met.
The Board
notes that this criterion
is
not
an issue on appeal,
and therefore, the Board accordingly
strikes pages 80
and
81
of STL’s October
13,
1987 brief.
Although they will not be considered by the Board,
they will
physically
remain
in
the record for transmittal
to any reviewing
court.
Statutory Requirements
and The County’s Written Decision
At all
times pertinent hereto, under
Section 39.2(a)
of
the
Act local authorities were
to consider six criteria when
reviewing an application for site suitability approval for
a new
regional pollution control
facility which will not accept
hazardous waste.
The six criteria are:
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
floodproofed
to
meet
the
standards
and
requirements
of
the
Illinois
Department
of Transportation and
is approved
by that Department;
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.
Sections 39(c)
and
(d) contain various requirements
for notice,
hearing,
and written public comment periods.
As compliance with
these requirements
is not at issue here,
they will not be
set
forth.
83—5 1
—6—
Section 39.2(e) provides
in pertinent part that “decisions
of the county board
are
to be
in writing, specifying the reasons
for
the decision, such reasons
to be
in conformance with
the
criteria
of subsection
(a)”.
The Winnebago County Board’s Resolution of May
28,
1987
(C.
860—864), adopted by
a vote
of 23—3 with two members absent
(C.870—88l),
denied approval
for the following stated reasons:
“Criteria
(sic)
No.
1:
Because
the
life
expectancies
of
the existing
facilities
is
such
as
to
provide
adequate
waste
disposal
for
the
area
of Winnebago County,
Illinois,
for at least
ten
years,
the
proposed
facility
of
80
acres,
having
a
projected
life
of
twenty
years
in
addition
to
the
estimated
remaining
life of
the
other
existing
facilities,
is
not
necessary
to
serve
the area.
Individual
votes were taken on
each
criterion
and
the
supoorting
reasoning
for
the
conclusion
prior
to
the
vote
on
the
resolution overall.
This language
was supported
by an initial vote of 17—9.
Criteria
No.
2:
The design
as
such
is meant
to
guard
against
leachate
migration
into
the
aquifers,
and
is
meant
to
prevent
such
an
occurrence,
but
falls
short
of
any
guarantee
against
failure.
The
location
is
in
close
proximity
to
major
drinking
water
aquifers
and
the
FZishwaukee
River.
Any
failure
could
be
catastrophic.
The
actual
operation
of
the
facility
is
not
delineated.
Criteria
No.
2
cannot
be
satisfied.
This
language
was
supported
by an initial vote of
22—4.
Criteria
No.
3:
A
20
foot berm will
allow view
of the landfill operation from ground level
once
the height of
the fill reaches the height of the
berm.
From
higher
elevations,
view
of
the
operation will
be visible
earlier.
The negative
impact
on
surrounding
property
values
will
be
closer
to
maximum
than
minimum,
and
will
adversely
affect
most
land
use
operations
excepting
actual
crop
growth
in
the surrounding
area
of
the
proposed
landfill.
This
language
was supported by an initial vote of 23—3.1
Criteria
No.
4:
The
facility
would
be
located
outside
the boundary of the 100 year
flood plain
as
determined
by
the
Illinois
Department
of
Transportation.
This
language was supported
by
an initial vote of 26—0.
83—52
—7—
Criteria
No.
5:
The
tenor
of
opinion
seemed
to
be
a
general
reliance
on
local
fire departments
and
their
mutual
aid
compacts
with
attendant
hazardous
material
handling
units.
The
plan
submitted fell short of outlining
a specific plan
for
dealing
with
operational
accidents,
fires,
spills
or
any
subsequent
danger
to
the
surrounding
area.
This
language was supported
by an
initial vote of 15—11.
Criteria
No.
6:
Inasmuch
as
traffic
counts
presented did not address all major
roads leading
to
the siting
area and were not all done at peak
times,
and
since
no
actual
figures
for
truck
movement
ventured
beyond
the
theoretical
considering
the existence of other waste disposal
facilities
in
theoretically
simultaneous
operation,
the
negative
impact
on
existing
traffic
flows
will be more than minimal.”
This
language
was supported
by
an
initial vote of 16—
10.
Section 40.1 of the Act charges the Board with reviewing the
decision of the local authorities.
Specifically, the Board
is
mandated
to determine whether the findings made below regarding
the six criteria are against the manifest weight of the evidence,
and whether the procedures used there were fundamentally fair.
E
&
E Hauling,
Inc.
v.
Pollution Control Board,
116 Ill. App.
3d
586,
451, N.E.
2d 555
(2nd Dist.
1983),
aff’d.
in part 107 Iii.
2d
33,
481 N.E.
2d 664
(1985);
(Waste Mgt.
of
Ill.,
Inc.
v.
McHenry Co~ntyBoard,
___
Ill. App.
3d
—,
___
N.E.
2d
___,
No.
2—87—0029
(2nd Dist.
September
11,
1987)
(reaffirming application
by the Board of the manifest weight of the evidence standard
of
review to each criterion).
In this case,
the City has raised
both
issues.
FUNDAMENTAL FAIRNESS
As
is its usual practice,
the Board first turns
to the
allegations that the procedures employed by the County in
conducting
its hearings and
in reaching
its decision were
fundamentally unfair, as
a fundamental unfairness finding may
preclude the Board from reaching weight—of—the—evidence
issues.
In
E
&
E Hauling, supra,
the
first case construing Sections
39.2 and 40.1,
the appellate court for the Second District
interpreted statutory “fundamental fairness” as requiring
application of standards of adjudicative due process.
116 Ill.
App.
3d 586.
A decisionmaker may be disqualified for bias or
prejudice
if
“a disinterested observer might conclude that he,
or
it, had
in some measure adjudged the facts
as well as the law of
the case
in advance of hearing
it”.
Id.,
451 N.E.
2d
at
565.
A
decision may be reversed, or vacated and
remanded, where “as
a
result of improper
ex parte communications,
the Agency’s
Q
~
UJ
J
—8—
decisionmaking process was irrevocably tainted
so
as
to make the
ultimate judgment of the agency unfair, either
to an innocent
party or
to
the public interest that the agency was obliged
to
protect.” Id.,
451 N.E.
2d
at
571.
Finally,
adjudicatory due
process requires that decisionmakers properly “hear”
the case
and
that those who do not attend hearings
in
a given case base their
determination on the evidence contained
in
the
transcribed
record
of such hearings.
Id.,
451 N.E.
2d at 569.
The City alleges,
in summary,
that:
After
reviewing
the
cases
on
landfill
siting
hearings,
before
both
this
Board
and
the
Appellate
Courts,
it
is
clear
that
in
terms
of
fundamental
unfairness,
the
proceedings
before
the Winnebago Country Board
in the instant matter
are
well
ahead
of
any
other
case.
Never
before
has there been
a case brought with the number
and
nature
of
ex
parte
contacts
found
here,
or
the
total
lack
of
knowledge
of
the
subject
matter
prior
to voting,
or the callous disregard for the
role
to
be
played by the County
Board members
in
this
case
as
opposed
to
their
normal
business.
In
short,
because of
the pressure put on by the
objectors,
and obvious predispositions and biases
of Board members,
the City never had
a chance
to
have
its
application
approved
.
(City
Brief,
p.
143)
The Board’s analysis of these contentions must begin with
its recognition that governmental officials should,
in the usual
case,
be presumed
to act without bias.
In
its review of the
Appellate Court’s ruling
in
E
&
E Hauling,
the Illinois Supreme
Court held that the lower
court had erred
in finding that the
DuPage County Board would, but for application of the “rule of
necessity”,
be disqualified
from ruling
on the landfill expansion
request at issue.
In that case,
the County Board was ruling on
a
landfill application submitted
by the DuPage County Forest
Preserve District
(District).
By statute, County Board Members
were also District Members,
and had
in both capacities passed
favorably on
the application several times prior
to the effective
date of SB172
(in part due
to contractual obligations between the
District as owner
and
E
&
E Hauling as operator).
The Illinois Supreme Court
found
that simply because the
County would receive revenues as
a result of their decision, that
there was no disqualifying conflict of interest, as the County
and other “public service bodies
...
must be deemed
to have made
decisions for the welfare of their governmental units and their
constituents”.
Finding that it would
“not be unusual” that
a
landfill would
be proposed for location
on publicly owned
property the Court went on
to state that
it did not believe the
“legislature intended
this unremarkable factual situation to make
83—54
—
fundamental
fairness of the proceedings impossible.”
481 N.E.
2d
at
668.
The
Court further held that the County’s pre—SB172 approval
of the landfill by resolution could not be deemed
to be unlawful
“prejudgment of administrative facts”,
as the County had not
previously
judged the proposal
in light of the six statutory
criteria.
In
so finding,
the Court relied
on
a line of decisions
that there
is no
inherent bias created when an administrative
body is charged with both investigatory and adjudicatory
functions,
citing Withrow
v.
Larkin,
421 U.S.
35, 47—50
(1975)
and Scott
v. Department of
Commerce
&
Community Affairs,
84 Ill.
2d 42,
54—56,
416 N.E.
2d 1082
(1981).
In the Scott
case,
the Illinois Supreme Court,
quoting
Martin—Trigona v.
Underwood,
529
F.
2d 33,
37
(7th Cir.
1975),
adopted the following test:
“one
who
asserts
this
contention
necessarily
carries
or
assumes
a
difficult
burden
of
persuasion.
Initially,
he
must
overcome
a
presumption
of
honesty
and
integrity
in
those
serving
as
adjudicators;
and
second,
he
‘must
convince
that,
under
a
realistic
appraisal
of
psychological
tendencies
and
human
weakness,
conferring
investigative
and adjudicative powers
on
the
same
individuals
poses
such
a
risk
of
actual bias or prejudgment that the practice must
be
forbidden
if
the guarantee
of
due process
is
to
be
adequately implemented.’”
Citing
Withrow,
421 U.S.
at supra,
47.
The Board also notes that it has recognized
that a
substantial body of case law exists supporting the principle that
one cannot invade
the mind
of the decisionmaker.
John Ash,
Sr.
v.
Iroquois County Board,
PCB 87—29, July 16, 1987,
appeal
dismissed,
No.
3—87—0553
(3d Dist. October 14,
1987), Board
Opinion at
p.
12 citing United States
v. Morgan,
313 U.S.
409
(1941); Citizens to Preserve Overton Park,
Inc.
v. Volpe,
401
U.S.
402,
420
(1971);
San Luis Obispo Mothers
for Peace
v. United
States Nuclear Regulatory Commission, 789
F.
2d 26,
44
(D.C.
Cir.
1986);
Time,
Inc.
v.
United States Postal Service,
667 F./ 2d
329,
335
(Second Cir. 1981);
United Steelworkers
of America, AFL—
CIO—CLC,
v. Marshall, 647
F.
2d 1189,
1217,
(D.C.
Cir.
1980).
But note that
in dicta in Citizens To Preserve Overton Park,
Inc.
supra,
401 U.S.
at 420
(1971),
the Court noted that before
an
inquiry
into an administrator’s mental processes when
contemporaneous formal findings exist, there must be “a strong
showing of bad faith or improper behavior”);
See, Note, National
Nutritional Foods Assn.,
v.
FDA, 491 F.
2D 1141
(2d Cir.
1974),
50 Wash.
L.
Rev.
739
(1975).
In
this case, the Board,
through its Hearing Officer, has
not permitted inquiry into what County Board Members read or
83—55
—10—
thought, although it has permitted inquiry into what they said
and did.
In order
to place
in perspective
the City’s specific
arguments,
a brief overview of the history of
the proposed site
and hearing/decision
is necessary
to provide
the proper
perspective.
Site Description
and History
The proposed landfill
site occupies the northeast quadrant
of the Mulford Road—Baxter Road intersection
in Cherry Valley
Township.
The property is an irregularly shaped corner parcel
containing
155 acres
which encloses on three
sides
a rural
homestead
of approximately
5 acres
a
property which the City has
attempted to purchase
(C. App.
Ex.
72).
The City surveyed
a
nine—section area which includes the 155—acre site and all the
area within one mile of the closest point of the landfill
site.
Within this
5,760
acre area,
97.9
of the total
is zoned AG
agricultural,
1.4
is zoned RR Rural Residential,
and 0.7
is
zoned
RA Agricultural.
There are 151 dwelling units
in
this
area;
74 homes are located
in the Thorne Ledge Subdivision, which
is
1
1/4 miles north of the proposed site, and
22 homes are
clustered
around
the Rockford Rotary Forest Preserve
1 mile west
of the proposed
site.
(C. App.
Ex.
73,
p.
5—6)
The 155 acre site was purchased by the City in
a land
contract
in
1970, with final transfer of the deed occurring
in
1977.
The Board
takes notice that in 1970,
the City’s proposed
purchase was the subject of litigation by neighboring land owners
and others who objected
to the City’s proposed use of the
site as
a sanitary landfill; STL started
as an organization at about this
time.
(PCB Tr.
134)
This litigation, O’Connor
v.
City of
Rockford,
52
Ill.
2d 360,
288 N.E.
2d 432
(1972), resulted
in
a
holding by the Illinois Supreme Court that the County could
not
by zoning ordinance prohibit development of
a landfill
if a
permit was issued by the Agency.
In 1972,
the City obtained
a
permit
to develop the site as
a sanitary landfill, but the permit
was allowed to lapse
for reasons not included
in this record.
(C.
App.
Ex.
38,
p.
32)
This record further
indicates that
in about
1980 the City
“reactivated” plans
to develop
a landfill to dispose of hazardous
as well as non—hazardous waste
at this site.
STL,
taking
“a
stand
in opposition to negligent zoning and landfills in
general”,
requested the County to adopt its draft in opposition
to the landfill
(Pet.
Exh.
4).
Peter MacKay, now—chairman of the
County’s
Zoning and Planning Committee and the Board Member who
introduced the resolution
to the County,
testified that the vote
on the resolution was unanimous.
(PCB Tr.
141—142).
The record
does not reflect whether the City attempted to obtain
a permit at
that time.
The Board
notes
that
SB172
as added to the Act by
P.A.
82—682,
became effective November
12,
1981.
83—56
—11—
At some time prior
to
the
City’s filing
of its application
on December
6,
1986,
Board Members Vernon Bell
*
and Margaret
McGaw signed
a petition stating
that
they
shared
“the
opinion
that
a
‘sanitary landfill’
at
Mulforci and Baxter Road will
adversely affect property values
and
the safety,
health and
welfare of the residents of the surrounding area”.
(PCB Tr,
32,124)
Over one hundred
such petitions were included
in
the
record
for review by the County
(C.
719—831); that signed by the
Board Members
is the last page
in the volume).
STL activities
STL as
an organization was very active during the hearing
and comment
phase.
STL distributed flyers urging citizens to
write their
Board Members and
to send
a copy of the letter
to the
County Clerk
(C.
679—680).
STL caused placement of signs about
the County with various texts including “no dump”,
“save
the
land” and “incineration”
(PCB Tr.
40,
159).
Mr. MacKay estimated
that he had seen some 100 or
so signs around the County;
13
others Board Members who were asked
the question also testified
that
they
had
seen
signs
(PCB
Tr.
158,
28,
40,
49,
59,
80,
93,
96,
105,
119,
122,
169,
174,
210).
STL president, Ralph Frantz,
and member Warren
G.
Larson,
appeared
at hearings as
formal representatives of STL at counsel
table,
and STL itself presented
10 opposition witnesses.
STL
operated
a concession stand
in the hearing room,
from which
various Board Members bought refreshments during the course of
the hearing.
STL also issued buttons saying “Save The Land”.
(Four Board Members acquired such buttons and wore them for
greater or lesser periods of time during and after
the public
hearings on the City’s application).
(PCB Tr. 25,68,139,204).
Two public comments on STL letterhead are included
in the County
public comment record.
One undated letter, signed
by Ralph
Frantz,
includes information presented to STL at its February 12,
1987 meeting by an
incinerator salesman who stated that an
incineration plant could
be operational within
2 years of his
company’s receipt of
siting approval
and
a permit
(C.
657—658).
(This information was also personally presented to Board
Member
Barnard
at
a March
3,
1987
lunch meeting.)
Another letter,
signed by Warren Larson and dated May 13,
1987,
speaks to
criteria
(ii)
and
(iii)
(C.
681—718).
As earlier stated,
the County Board discussed and considered
the City’s application on May 21 and May 28.
During the period
May
18 through May 28,
1987, STL bought commercial time on Radio
Station WROK/WZOK to broadcast the following messages:
*
The record indicates that Mr. Bell
is no longer
a member of the
County Board
(PCB Tr.
122).
Additionally, Richard Kulpa stated
at this Board’s hearing
that he had resigned from the County
Board that day
(PCB Tr.
144).
83—5
7
—12—
“Rockford
Metro
Centre.
Rockford
Lightning.
Greater
Rockford Airport
Terminal.
New American
Theater.
Rockford
Magazine.
Pride
of
Rockford.
Regional
Rockford Garbage
Dump!
Have
you
ever
noticed,
no
matter
how
you
present
or
package
somethings,
they
just
aren’t
right?
They’re
contradictory!
A
garbage
dump next
to
five
beautiful
forrest
preserves
is
just
not
right!
State of the art garbage dump,
is another
contradiction.
You
can
help associate
Rockford
with good
things.
Call your County Board Members
now.
Tell them no more garbage dumps.
Imagine a disease infected water
supply.
Imagine
your
property
values
plummeting.
Imagine
your
trash blowing
freely on our
rural
roads.
That’s
what you have
if the planned dump is approved by
the
Winnebago
County
Board
on
May
28th.
It’s
proven, landfills are a bad answer.
155 acres of
prime
farm
land
could
turn
into
a
garbage dump
before
your
very
eyes.
Help
save
our
environment.
Rockford
and
County
residents
invest
thirty
seconds
right
now
and
call
your
County Board
Member
and
say
no
to landfill.
If
you don’t
know who
to call,
call the hot line at
874—8776.
That’s 874—8776.
Paid
for by Save The
Land Incorporated.
The
City
of
Rockford
wants
to
put
in
another
garbage dump.
How do you
feel about
a poisoned
water
supply?
How
do
you
feel
about
your
children
being
exposed
to
cancer
causing
chemicals?
It’s
a
proven fact all garbage dumps
leak poisons and chemicals into surrounding
water
supplies.
Help protect our water.
Rockford and
County residents
invest thirty
seconds
right now
and
call your
County Board
Member
and
say no
to
landfill.
If
you
don’t
know
who
to
call,
call
the hot line
at 874—8776.
That’s 874—8776.
Paid
for by Save The Land Incorporated.
(Pet.
Ex.
7)”
The record
is unclear about
the results of the call—in campaign
personally to County Board Members; although three Board Members
testified
that they respectively received
10,
25—30
and
35 calls
(PCB
Tr.
92,
57,
121—122,
168).
There
is nothing
in the county
record
indicating that the County Board members received these
calls.
Three Board Members heard
the commercial
(PCB
Tr.
29,
93,
210, Mr. MacKay did not hear
the commercial
on
a regular
broadcast,
but instead on
a WROK “Viewpoint”
program
editorializing against the commercial.
“Id.”
148—149.)
Following the County’s May 21,
1987 meeting,
STL presented
to at least one County Board Member
a “fact sheet”
of the
hearings signed by Ralph Frantz,
a document which is not included
83—58
—~
in the County Record
(PCB
Pet.
Ex.
5, p.1—17).
The same Board
Member also received
a
transcript of
the February
12,
1987 STL
meeting concerning incineration.
This document,
hand addressedto
“Bd Members”
and
signed
“JT” does not appear
in the County
Record,
(?CB Pet.
Ex.
18—27).
Finally,
Ralph
Frantz
and
four others appeared
at the May
28th meeting
and addressed the County concerning the site prior
to commencement of
County deliberations.
The minutes of the
meeting do not reflect
the
substance of the address
(C.
869
18).
Activities
By The County
and Its Members
The testimony of Mr. MacKay clearly indicates that he was
very aware of the difference between his ordinary legislative
functions
as
a Board Member and his functions as
“hearing
officer”
and adjudicator
under SB172.
Although he was
“not
particularly comfortable with being
a quasi—judge”, Mr. MacKay
stated
that:
“I had made effort
(sic)
to prevent county board
members prior
to the public hearing and after the
siting
application
was made
to
avoid
discussing
the
ramifications
of
the
issue
prior
to
the
public
hearing,
in
fact
during
the
public
hearing, because they had
to be on the panel that
made
the decision on the siting
application.”
While he himself did not,
in conversation,
“get involved
in the
right or wrong of
the issue with anybody”, he noted that
his
attempts
to prevent other Board Members from doing so were
successful only to
some degree, since:
“you
can’t
tell
people
not
to
talk.
When
the
issue
of incineration, sometimes remarks would be
made
at
county
board
meetings,
I
objected
every
time
that type
of conversation came up at county
board
meetings,
committee
meetings,
whenever
it
was done in my presence
(PCB Tr.
135—136).
During the course
of the hearings
it does not appear that Mr.
MacKay cautioned Board Members from purchasing refreshments
from
STL but he did
request that Board Members Bell,
Barnard, Connelly
and Giorgi, who appeared
at hearing wearing STL buttons leave
or
remove them, feeling that such activity was
in “poor taste.”
(PCB
Tr.
137).
Seventeen of the County Board Members who testified at the
Board hearing indicated that they had received letters
from
constituents, with few exceptions being anti—landfill, in
estimated numbers ranging from 25 to 150
(PCB
Tr.
27,
39,
46,
58,
79—80,
92 97,
116,
119,
121—122,
143,
168—169,
174,
182,
189—191,
197,
202,
209).
Examination of the copies of letters and
documents tendered
at
the PCB hearing by Board Members Folz,
83—59
—14—
Goral
and Winters
(PCB Pet.
Ex.
2,5,6)
indicate that while some
of this material was included
in the County Record, much was not.
(e.g.
PCB Pet.
Ex.
l&2,
p•
1—7 appears at C.
580,
261,
397,
372,
585,
593,
565—66.)
In addition
to the STL materials noted
in the
preceding section, notable omissions from
the County Record
include
a resolution from Cherry Valley Township and
a letter
giving times
of school
bus loadings
at
the Baxter and Mulford
intersection.
(PCB Pet.
Ex.
5,
pp.
92,
117—118)
There
is no
evidence concerning whether Board Members were advised
as
to what
to do with letters which did not indicate that copies had been
sent to the Clerk.
The PCB record
indicates that
10 Board Members attended
at
least one of the public hearings
(PCB
Tr.
23,
44,
56,
67,
95—96,
104,
126,
166,
173,
205,
206).
Seven testified they had attended
none.*
(PCB
Tr.
37,
77,
86,
114,
121,
181,
187).
There
is evidence that the Board Members were advised by
memorandum that the hearing
record was available to the County
Board Members no later
than April
23,
1987 in the County Board
Office
(PCB Pet.
Ex.
5,
p.
78).
However,
five Board Members who
voted against the application indicated that they were unaware
or
unsure of the location of the record.
(PCB Tr.
114,
121,
128,
174,
185).
On April
29,
1987, Board Member
Bell, along with Board
Chairman James Terranova, appeared on a radio program “Talk of
the Town”, whose hour—long subject matter was “the landfill
issue”.
According to Board Member McGaw, who tuned
in
to the
last part of the program, radio callers were asking questions
about
the proposed landfill.
Mr.
Bell stated that he had already
made—up his mind
on the issue,
but would
not reveal his vote.
(PCB
Tr. 29,122—123).
The record contains no additional
information concerning this program.
Mr. MacKay’s Committee met on April
22 and May 13, and 18.
The Committee’s Recommendation’s including
the alternative
conclusions of criteria five and six on which the Committee was
deadlocked, were considered by the County Board
on May 21
and May
28.
Prior
to the commencement of the County’s deliberations, the
County allowed Ralph Frantz and four others
to address
it
concerning the site
(C.
869
18).
The County’s October 23,
1986
Ordinance outlining
its decisionmaking process
in SB172
proceedings provides
in pertinent part~that:
*
The Board notes
that,
in the transcripts of
the County Board
hearings, the presence of only the County Board members who were
members
of the Zoning
and Planning Committee were noted.
Four
of
the five committee members appeared
to have attended each
hearing.
83—60
_i
5—
A.
The
decision
of
the
committee
on
the
application
shall
be
in writing,
specifying
the
reasons
for
that
decision.
Said
decision
shall
be
based
solely
upon
the
criteria
set
forth
in
the
Illinois
Environmental
Protection
Act,
and
shall
be
forwarded
to
the
County
Board
for
final
action.
B.
The
County
Board
shall
make
its
decision
based
on the
record
from
the public hearing
and
review
of
the
recommendation
of
the
committee.
C.
The
decision
of
the
County
Board,
whether
approval,
approval
with
conditions,
or
denial
shall
be
made
in
the
form
of
a
resolution which
shall set forth the reasons
for that decision. (City Brief,
p.
1,
& App.
C.
p.
4)
Notwithstanding, discussions at the County Board meetings
concerning the application
indicate that additional issues, such
as the advisability of incineration
as
a landfill alternative,
and additional
information not
in the record was requested
or
discussed.
At the May
21 meeting, Vernon Bell asked
and answered his
own question during discussion of the issue by stating that a)
there were no
“guarantees” against leaking;
and b)
there
is no
such thing as
a sanitary landfill
(PCB—30—3l).
Lynne Connelly stated
a)
that the applicant promised
her
to
build
a transfer station,
a fact not
in the record;
b)
that
several water wells had been closed,
a fact not
in the record;
c)
that landfills in the area are on the Superfund list,
which she
believed was not
in the record;
and d)
that she read
a statement
from
a doctor
in Chicago concerning landfills
—
also not
in the
record
(PCB—60—62).
In addition, she discussed the “track
record”
in the County with respect to landfills,
also not in the
record
(PCB—63).
Amadeo Giorgi noted on May
21:
“That
brings
up
a
good
question.
We
have
been
talking about the different problems we have.
Is
there
a
possibility by Thursday night
to come up
with
the questions
that were
asked
tonight
like
the
traffic
patterns,
the
amount
of
trucks
that
will
be
involved,
if
there
is
a
fire what do we
do
if
there
is
a
fire
and
how many people
would
be
involving the property depreciations?
Can we
get those figures before Thursday night
so we can
make
a decision on the vote?
I think
it’s
a good
83—61
—16—
——
somebody
should
sharpen
a
pencil
and
start
doing
something
before
Thursday
night.”
(PCB—
108).
Giorgi also said he had driven by the site, and
it
is not
a
very big road
(PCB—l09).
David Winters, during
the May
21 meeting,
brought up vermin
control
at O’Hare Airport,
and disease
to wipe out hog
populations, neither of which were
in the record
(PCB—l59--l96).
On May
28, Richard Kulpa said there were not any
“guarantees”, but did not
know if language of guarantees was
in
the record
(PCB—llB).
John Schou discussed plans at Pagel Pit,
and
is not sure
if they are
in the record
(PCB—l69—l70).
Afric
Simon stated that “incineration
is the only way to go” during the
night
of May
28,
but doesn’t recall
if incineration
is in
the
public record
(C—l85).
Scott Christiansen discussed at the May 28 meeting “looking
for alternatives”, and said during
the PCB hearing
“Now,
I
know
the criteria was
to deal specifically with the hearing only.
However, as
a legislator
it
is certainly my right to speak of
alternatives
(to landfilling).”
(PCB—78—79).
Jim Hughes,
who
sat on the Zoning and Planning Committee,
made references to all landfills leaking and past history at
People’s Avenue landfill and the 18th Avenue pumping house
—-
facts not
in the record
(PCB—98—99).
On May 28,
1987,
the County Board held
a meeting during
which it voted
to deny the City’s
application.
The minutes of
the meeting indicate that prior
to the vote,
“Gail Kelce,
Dennis
Kelce,
Irene Meeker,
Ralph Frantz,
and Terry Irigrassia addressed
the
County
Board regarding the proposed Mulford/Baxter landfill
site.”
The minutes do not indicate whether any other members of
the public were present or whether the City had a chance
to
respond
to this presentation.
Evidently,
the presentation was
not transcribed.
The last public hearing was held on April
13,
1987.
Consequently, the presentation
to the County Board was given
after
the close
of the public hearings but still before the
County Board rendered
a decision.
A similar
incidence occurred
in E&E Hauling.
In that case, the applicant had several meetings
with the Finance Committee of the County Board subsequent
to the
close of the public hearing but before the County Board’s
decision.
The record was lacking as to whether the Village of
Hanover Park,
which opposed the
landfill,
or any members of
the
public participated
in the meetings.
E&E Hauling,
451 N.E.2d at
570.
The Second District reasoned that “the
lack of notice
to
the public that the landfill would be discussed at the Finance
Committee suffices
to characterize those meetings as
‘ex parte’
whether or not they were truly secret.”
The court concluded that
83—62
-17-
the
ex parte
contacts of these meetings were improper, although
the Village of Hanover Park did not prove that it was prejudiced
by these contacts.
E&E Hauling, 451 N.E.2d
at
571.
Similarly,the Board concludes that the presentation
to
the County
Board
at the May 28th meeting was an improper ex parte contact.
As aforementioned,
the vote against the City’s application
overall was
23 to
3 against the landfill with preliminary votes
for the language concerning
the applicants failure on criteria
1,
2,
3,
5,
and
6,
being
respectively 17—9,
22—4,
23—3,
15—11,
16—
10,
23—3.
When County Board Members testified before this Board
some three months later, very few could
remember more than two or
three criteria,
if any
(PCB Tr.
41—42,
50—51, 80—83,
88—89,
100,
111,
118,
123—124,
127,
177,
182,
184,
187,
206).
City Objections To Hearing Procedures
The City contends that certain of the hearing procedures
were fundamentally unfair.
The first was the choice of the
hearing site,
the Cherry Valley Township Garage.
Mr. MacKay, who
conducted
the hearings, testified
that
it was not
a usual place
for his committee to meet.
He also testified that the hearing
was held there
in response
to
a request by the Township, and that
he had made the commitment before
the City registered
its
objection to the location.
(PCB Tr.
p.
146—147).
The Township
Supervisor was
a witness in opposition
to the application
(C.
Tr.
5—6,
1510—1541).
The City next objects
to the fact that STL was allowed to
sell refreshments
in the hearing room.
Mr. MacKay recalls that
“nobody
objected
to
that
beyond
questions
that
it
might
be
a
fundraiser.
However,
there were no signs.”
(PCB
Tr.
164).
Five
County
Board
Members
testified
that
they
had
partaken
in
refreshments
and
left
donations
to
“pay”
for
them.
There
was
also
testimony
that
representatives
of
the
City
did
so
as
well.
(PCB
Tr.
51,
53,
98,
101,
129—131,
175—176,
178,
204.)
The
third
objection
involves
cross—examination
of
witnesses.
At
the
first
hearing,
STL
President,
Ralph
Frantz
and
Warren
P.
Larson
sat
at
the
Counsel
table
with
Attorney
Michael
Kukla,
Mr.
MacKay
asked
for
opening statements
from “the objectors”,
which
Mr.
Kukla
waived.
Mr.
Kukla
then
proceeded
to
cross—question
the
City’s
first
witness.
Immediately
thereafter,
the
City
requested
that
STL
members
not
engage
in
questioning
of
witnesses,
and
Mr.
MacKay
agreed.
A
dispute
then
arose
as
to
whether
Mr.
Kukla’s
representation
and
questioning
served
only
to
preclude
Messrs.
Frantz
and
Larson
from
asking
questions,
or
whether
it
served
to
preclude
all
STL
members
from
asking
questions
as
well.
Mr.
MacKay
stated
that
his
ruling
did
not
cover
all
STL
members,
as
he
“had
a
problem
with
limiting
citizens’
input
inasmuch
as
it
is
a
public
hearing”
and
didn’t
think
it
was
the
County’s
place
“to
ask
people,
citizens,
at
a
public
hearing
whether
or
not
they
belong
to
Save
The
Land”.
Later,
a
citizen
who
identified
himself
as
an
STL
member
cross—questioned
a City witness.
(C.
Tr.
83—63
—18—
1,
48,
88,
93—95,
98.)
Mr.
MacKay testified that he has never
seen
a membership list
for STL, and would have no knowledge as
to
who might be an
STL member beyond his personal assumptions
(PCB
Tr.
158.)
The City objects
to
Mr. MacKay’s ruling as
inconsistent,
and an unfair slanting of procedures.
The Board does not find that any of these
three practices
objected to, viewed
in isolation,
give rise to
a finding
of
fundamental
unfairness.
As
the
Baxter
and
Mulford
site
is
located
in
Cherry
Valley
Township,
it
was
not
unreasonable
to
hold the hearing
in that location, although the Board takes the
City’s
point
that
the
location
was
hardly
“neutral
territory”.
As
to
the
cross—examination
issue,
Mr.
MacKay’s
decision
to
allow
questioning
by
citizen
objectors
other
than
Messrs.
Frantz
and
Larson
as
well
as
counsel
for
objectors
was
a
reasonable
one.
Although
there
was
initial
confusion
concerning
the
scope
of
his
ruling,
Mr.
MacKay
clearly
did
not
reverse
himself.
SB172
contemplates
and
encourages
citizen
participation
without
requiring
that
they
be
represented
by
an
attorney;
to
permit
individual
members
of
a
group
which
is
represented by counsel
to
ask
questions
is
within
the
County’s
discretion
providing
such
questions
do
not
become
unduly
repetitious
or
harassing.
There
is
no
showing
here
that
this
in
fact
occurred.
In
fact,
the
Board
must
comment
that
Mr.
MacKay
overall
did
a
fine
job
of
conducting
the
public
hearings
in
this
matter,
in
threading
his
way
through
various
objections
posed
by
participants,
in
handling
inappropriate
reactions
from
the
“audience”,
and
in
minimizing
disruption
to
the
hearing
process
by
directing
the
television
crews
covering
the
hearings
to
“back—
off”
with
their
lights
and
cameras
(e.g.
PCB
Tr.
1264—1266,
1703).
Concerning
the STL refreshment stand,
the issue
is perhaps
more
appropriately
cast
as
whether
STL
(as
opposed
to,
for
instance,
the
Girl
Scouts)
should
have
been
allowed
to
run
a
refreshment
stand
at
hearings
in
which
they
were
identified
as
objectors.
The
“fundraiser”
aspects
of
their
action
are
certainly
problematical,
and
an
inference
could
well
be
drawn
of
governmental
support
for
the
STL
position.
However,
it
is
unclear whether the STL presence as concessionaire was under the
control
of
the
County,
which
was conducting
the hearing,
or
the
Township,
whose
facility
was
being
used
and
whose
Supervisor
was
an identified objector.
As a practical matter, under
these
circumstances
it
was
not
unfair
for
the
County
Board
Members
to
buy
refreshments
from
the
sole
concession
available;
as
the
Board
itself
knows,
attendance
at
hearings
can
be
“thirsty
work”.
The
Board
wishes
to
emphasize
that
this
holding
applies
only
to
the
unclear
facts
of
this
case;
the
Board
could
well
find
granting
of
such
a
concession
by
a
decision
making
body
fundamentally
unfair
in
the
future.
83—64
_1 Q_
Impropriety
In The Decision Making Process
The City’s argument here
is that
a variety of factors
rendered the decisionmaking process fundamentally unfair.
Section 39.2 requires
the County’s ruling
to be an adjudicatory—
type decision based
solely on consideration of the evidence
presented
at
the
public
hearing
and
the
written
public
comments,
solely
as
they
relate
to
the
six
statutory
criteria.
The
essence
of
the
City’s
argument
is
that,
instead,
the County made
a
legislative—type
decision.
The
City
asserts that this
is
evidenced
by
testimony
of
County
Board
Members
which
on
the
one
hand
indicates
lack
of
familiarity
with
the
statutory
criteria,
lack
of
knowledge
concerning
even
the
location
of
the
County
hearing and public comment record,
and lack of familiarity with
the
Committee’s
Recommendations,
but
which
on
the
other
hand
indicates reliance on information not in the public record
obtained
through exposure
to signs,
radio programs, and
commercials,
private
conversations,
telephone
calls,
and
letters
not
in
the
record
(i.e.,
ex
parte
contacts),
personal
readings,
and
general
knowledge
of
“facts”
concerning
other
landfill
sites.
The
City
additionally
asserts
that
some
County
Board
Members
showed
clear
indications
of
bias
and
pre—judgment
of
facts.
The
Board
agrees
with
the
City’s
contentions.
There
is
little
in
this
record
which
indicates
that
the
County
Board
Members
(save
for
MacKay,
as
earlier
noted,
and
Folz,
PCB
Tr.
51,54)
made
any
real
distinction
between
their
quasi—judicial
functions
and
their
legislative
functions,
and
much
that
they
did
not.
At
the
outset,
utilizing
the
rationale
of
the
Supreme
Court
in
E
&
E
Hauling,
the
Board
does
not
find
that
the
bare
fact
that
the
County
had
by
1980
resolution
indicated
disapproval
of
the
site
would
prevent the County Board as
a whole from properly
considering
the
City’s
application
without bias or prejudgment.
However,
the
situation
is
complicated
by
the
County’s membership
on
the
Solid
waste
Intergovernmental
Committee
(SWIC)
along
with
the
City
and
the
Rockford
Sanitary
District
and
various
nonvoting
members
from
various
citizens
groups.
Various studies adopted by
the
SWIC
were
presented
by
the
City
in
support
of
its
landfill
proposal
(C.
App.
Ex.
2,
11,
12,
C.
Tr.
11—12).
However,
the
SWIC
had
moved
on
to
consider
the
feasibility
of
incineration
with
the
result
that
general
solid
waste plannng issues were
injected
by
the
County
Board
Members
as
well
as
participants
into
the
SB—l72
proceeding.
The
County
record
contains
admonitions by Mr. MacKay
about
what
the
focus
of
the
hearings
was
to
be
and
a
reminder by the
City
at
the
first
hearing
that
the
proceeding
was
solely
about
a
applicability
of
the
six
criteria
in
relation
to
the
proposed
site
and
not
about
“whether
another
alternative
is
better
or
should
we
recycle
or
should
we
go
full
bore
to
shredding
or
composting
and
it’s
not
about
landfills
in
general
...
and
most
83—65
—20—
importantly,
it’s not about waiting
around
on
a landfill until
an
incinerator
is built”
(C.
Tr.
p.
9,13,19).
Yet all of these
issues recur
in the County’s debates concerning
the Section 39.2
criteria.
As Lynne Connelly echoing Scott Christiansen
(PCB Tr.
78—79)
stated:
“I
also looked
at all the rest
of the information
that was available
to
us.
I
did not limit myself
just
to
the
hearing.
My
gosh,
we
have
known
about
this
since
the
early
‘80s,
and
I
believe
the
city
has
been
after
that
parcel
of
land
since
1969—70.
It’s
not
something
new
that
we
just
were
faced
with
in
the
last
year.
(PCB
Tr.
p.
75)”
As
well
as
evidencing
an
unacceptable
blurring
by
the
County
of the issues
to be considered, and disinclination to be bound by
the limits of the record before the County,
this record also
indicates
a basic failure by the majority of County Board Members
to appreciate
the significance of the concept of
ex parte
contacts.
The prohibition against ex parte contacts
flows from the
requirement that adjudicatory decisions be made on
the basis of
a
sworn and transcribed record subject
to cross—questioning by all
parties involved.
To the extent the SB172 process contains
a 30—
day post hearing public comment period without including
a
restriction of the scope of comments
to argument about
information already in the record, the ability to rebut all on—
record information
is diminished; nonetheless the principle of
prohibiting informal
or special access
to decisionmakers remains
the same.
There
is no indication that most Board Members did anything
either
to restrict their usual informal contacts with their
constituents
or
to make such contacts part of the record by e.g.
routinely forwarding
all correspondence to the Clerk, by reducing
the contents of unavoidable phone calls to writing and filing the
memo with the Clerk.
It
is difficult for the average person to
relate
to being
a judge,
although many have had experience
as
a
juror.
The Board Members clearly did
not ask themselves whether,
if they were acting
as jurors
in a court case they would
think
it
fair,
or proper to
1)
wear
a button supporting one party over
another,
2)
to buy buttons
or refreshments during trial
from one
party’s “defense fund”,
3)
to read letters supporting one party
over another not placed
in evidence,
4)
to appear on radio
to
discuss
a case prior
to giving a verdict,
5)
to have telephone
or personal conversations about the merits
of the case with
persons not on the jury,
6)
or
to decide the merits of the case
on a basis other than the judge had
instructed
them.
Any natural,
if inappropriate, tendencies the County Board
Members may have
to confuse their duties and role was exacerbated
by STL’s public opinion campaign.
STL’s flyers urging the
83—66
-21-
writing and proper
filing of written comments as well
as hearing
attendance and testimony was perfectly proper and indeed laudable
in an adjudicatory context.
Its other activities——the signs,
hearing room refreshment stand,
and submittal
to the County
of
off—record
comments
during
its
deliberation of the Committee’s
recommendations,
and
the
radio commercial—call
in campaign
immediately
before
the
County’s
vote
——
are
all
time honored
lobbying
activities
which are inappropriate
in the quasi—judicial
atmosphere of
an SB172 proceeding.
STL’s running of its anti—
landfill radio commercials, urging citizens to call the
judge/jury,
only
served
to encourage
ex
parte
contacts.
The
legislature has provided
for and doubtless anticipated hot debate
in SB172 proceedings, but the forum provided
for such debate
is
the
hearing
room,
not
the
cloakroom,
the
streets,
or
the
airwaves.
(The
Board
of course notes that,
news reportage of
the
proceeding
is
to
be
expected,
as
was
the
case
here,
where
news
articles
(PCB
Tr.
35,84,94)
as well
as radio programs discussed
the
subject.)
In
considering
whether
ex
parte
contacts
have
“irrevocably
tainted”
a
decisionmaking
process
so as
to render
it
fundamentally
unfair,
relevant
considerations
include:
1)
the
gravity
of
the
ex
parte
communications;
2)
whether
the
contacts
may
have
influenced
the
agency’s
ultimate
decision;
3)
whether
the party making
the improper contacts
benefitted
from the agency’s ultimate decision;
4)
whether the contents of the communications were unknown
to opposing parties,
who therefore had no opportunity to
respond;
and
5)
whether
vacation
of
the
agency’s
decision
and
remand
for
a new hearing would serve
a useful purpose
...
B
& E
Hauling, 451 N.E.
2d at
571,
citing
PATCO
v.
Federal
Labor
Authority,
685
F.
2d
547,
564—5
(D.C.
Cir.
1982)
The
Board
believes
that
the
cumulative
effect
of
STL’s
various
extra—record
activities
is
grave,
and
influenced
the
Board’s
decision
to
STL’s
benefit.
While
the
City
likely
knew
of
some,
if
not
all,
of
these
contacts,
there
was
no
permissible
way
for
it
to
respond
in
kind.
This
brings
the
Board
to
the
question
of
remedy.
Essentially
the
City’s
allegations
as
to
the
unfairness
of
the
County
Board’s
proceeding
may
be
classified
in
three
ways:
bias,
ex
parte
contacts,
and
consideration
of
material
not
in
the
record.
The
Board
will
address
each
category
in
turn.
The
City
contends
that
a
degree
of
unfairness exists because
the
County
had
unfavorably considered this landfill site
in prior
83—67
—22—
years and thus some members had already voted against
it.
This
site was discussed by the House of Representatives
in debate on
SB—172
on
July
1,
1981,
and
it
was
made
clear
that
the
siting
law
would
apply.
The
pertinent
parts
of
the
discussion
are
quoted
below:
Mulcahey:
Represenative
Breslin,
we’ve
had
Amendments
attached
to
this
Bill
in
Committee.
We’ve
had
Committee
Bills
that
have
come
before
this
House
on
Second
Reading
to
try
to
resolve
a problem that exists
in my
district,
and
I
believe
in
Representative
Schraeder’s
district.
A
very
serious
problem
we
had
with
the
EPA,
with
licensing
and
so
on
and
so
forth.
I
think
you’re
familiar
with
that
problem.
I
would
like
to
know
what
does
this
Conference
Commitee
Report
if
it’s
adopted
in
its
final
form,
what
is
it
going
to
do
resolve the problem of Cherry Valley
in
Winnebago
County?
Breslin:
I
am
not
familiar
with
the
present
status
of
Cherry
Valley
in
particular.
But
what
it
does
is,
as
to
all
facilities
that
have
not
been
granted
a
permit
by
the
Environmental
Protection
Agency
as
of
today’s
date,
July
1,
1981.
They
must
before
getting
a
permit
from
the
EPA,
first
secure
the
permit
from
the
county
or
the
local
unit
of
government
in
which
they
lie.
If
they
lie
totally
within
a
municipality
then
they
get
it
from
the
municipality,
it
they
lie
in
the
county,
in
the
unincorporated area then they
get
the
permission
from
the
county,
if
they
overlap
they
get
it
from
both.
And
this
must
be granted prior
to
the
EPA going ahead with
its
siting
approval.
Mulcahey:
Okay,
now
in
this
particular
case
we
have
property
that’s
already
been
purchased
in
Winnebago
County.
It’s
been
lying
there
for
ten
years.
It’s
owned
by
the
City
of
Rockford.
In
order
to
grant...in
order
for
the
EPA
to
grant
a
permit
to
the
City
of
Rockford
for
this
particular
site,
the
City
Council
and
in
this
case,
the
Winnebago
County
Board
would
have
to
also
give
their
permission,
is
that
correct?
Breslin:
It’s
outside
the
boundaries
of
the
city?
Mulcahey:
Yes,
it
is.
83—68
—23—
Breslin’:
Yes.
Yes.
Mulcahey:
Thank You.
Speaker
Daniels:
Further
discussion?
Representative Jim Kelley.
Kelley:
Yes,
I
believe
Representative
Mulcahey
asked
the
questions
that
I
was going
to.
We
have
a
problem
in Winnebago County.
I
didn’t
follow
the
last
question
he
asked
you,
Representative..
.was
this
land has been
purchased
and
laying
there.
Does
that still
come under your Bill,
that they can not get a
permit
to dump if they haven’t done
so by the
first?
Speaker Daniels:
Representative Breslin.
Breslin:
If
the
EPA has
not granted
them
a
permit
by
the
time this Bill
is
signed
then
the siting provisions
of this Bill will apply
to
them.
Okay?
Regardless of when
the land
was
purchased
or
how
long
it’s
been
there
or
who owns it?
Kelley:
Could
I
speak, just for
a second, to
the Bill,
Mr. Speaker?
Speaker Daniels:
Proceed, Sir.
Kelley:
I would certainly urge everybody on
this side
of
the aisle and both
sides
of the
aisle to vote
for this Bill because you never
know when
you’re
going
to
be
next
and
have
one
in your backyard.
The Legislature knew this site was controversial
at the local
level and that the new siting law would apply.
It
follows that
it expected the County to make
a decision on this matter despite
any prior activity by the City or landfill opponents.
In the decision making process of an SB—172 proceeding,
it
is
essential
that
the
decision
makers
remain
objective
and
are
open minded
in their review of the evidence.
Any bias or
predisposition
by
any
decision
maker,
for
one
position
or
another,
could
render
his
or
her
decision
unfair
and
therefore
void.
However,
the
Board
recognizes
that
courts
have
viewed
an
allegation of
bias with some degree of scrutiny.
That is,
a
decision
maker
is
presumed
to
be
impartial
and
objective.
In
Citizens
for
a
Better
Environment
v.
Illinois
Pollution
Control
Board,
152
Ill.
App.
3d.
105,
504
N.E.2d
166
(1st
Dist.
1987).
The First District discussed this issue:
83—69
—24—
In
addressing
this
issue,
we note that
it
is
presumed
that
an
administrative
official
is
objective
and
“capable
of
judging
a
particular controversy fairly on the basis of
its
own
circumstances.”
(United
States
v.
Morgan
(1941),
313
U.S.
409,
421,
85
L.
Ed.
1429,
1435,
61
5.
Ct.
999,
1004).
The mere
fact
that
the
official
has
taken
a
public
position
or
expressed
strong
views
on
the
issues
involved
does
not
serve
to
overcome
that presumption.
(Hortonville Joint School
District
No.
1
v.
Hortonville
Educational
Association
(1976),
426
U.S.
482,
49
L.
Ed.
2d
1,
96
S.
Ct.
2308).
Nor
is
it
sufficient
to
show
that
the
official’s
alleged
predisposition
resulted
from
his
participation
in
earlier
proceedings
on
the
matter of dispute.
(Federal Trade Commission
v.
Cement
Institute
(1948),
333
U.S.
683,
92
L.
Ed.
1010,
68
S.
Ct.
793).
504 N.E.2d.
at 171.
Although the First District’s Statement
in Citizens
for
a
Better Environment was made during the judicial
review of
a
rulemaking,
the Board believes that the statement still has
considerable
value
in
this
proceeding
which
is
a
review
of
a
quasi—judicial decision.
The cases cited
in the above passage
concern decisions which were reviewed on the basis of
adjudicatory standards.
A closer look
at these cases emphasizes
further
their
value
to
this
proceeding.
Morgan
concerned
a
rate
order
issued
by
the
U.S.
Secretary
of
Agriculture.
In
that
case,
the Court held:
Cabinet
officers
charged
by
Congress
with
adjudicatory functions
are not assumed
to be
flabby
creatures
any
more
than
judges
are.
Both
may
have
an
underlying
philosophy
in
approaching
a
specific
case.
But
both
are
assumed
to
be
men
of
conscience
and
intellectual
discipline,
capable
of
judging
a
particular
controversy
fairly
on
the
basis
of
its
own
circumstances.
Nothing
in
this
record disturbs such an assumption.
313
U.S.
at
421,
85
L
Ed
at
1940
Hortonville
Joint
School
District
No.
1,
dealt with
a
decision
of
a
School
Board
to
fire
striking
teachers.
The
alleged bias concerned
the fact that the School Board had been
involved
in negotiations with the teachers prior
to the firing.
The
Court
emphasized
the
fact
that
Wisconsin
statutes
empowered
the
School
Board
with
the
authority
to
dismiss
teachers
as
a
part
83—70
—25—
of
the School Board’s exclusive governmental
or policymaking
function concerning schools.
The Court concluded:
A
showing
that
the
School
Board
was
“involved”
in
the
events
preceding
this
decision,
in light
of
the
important
interest
in leaving
with
the
School
Board
the power
given by the state legislature,
is not enough
to
overcome
the
presumption
of
honesty
and
integrity
in
policy
makers
with
decision
making power.
426 U.S.
at 497,
49 L Ed
2d at
11
Also,
while
citing
Morgan
the
Court
also
stated:
Nor
is
a
decisionmaker
disqualified
simply
because
he
has
taken
a
position,
even
in
public,
on
a
policy
issue
related
to
the
dispute
in
the absence
of
a
showing
that
he
is
not
“capable
of
judging
a
particular
controversy
fairly
on
the
basis
of
its
own
circumstances.”
426 U.S.
at 493;
49 L Ed
2d
at
9
Federal Trade Commission concerned the review of an Order
issued by the Federal Trade Commission
(FTC)
against certain
cement manufacturers that required the manufacturers
to cease and
desist from acting
in concert to sell cement under
a particular
pricing scheme.
333 U.S.
at 689,
92 L Ed at 1028.
Allegations
of bias centered around
FTC reports, previously issued
to
Congress, which had concluded that the particular pricing scheme
was
violative
of
anit—trust
laws.
In
discussing
the
bias
issue,
the
Court
stated:
If
the
Commission’s
opinions
expressed
in
congressionally
required
reports
would
bar
its
members
from
acting
in
unfair
trade
proceedings,
it
would
appear
that
opinions
expressed
in
the
first
basing
point
the
pricing
scheme
at
issue
unfair
trade
proceeding
would
similarly
disqualify
them
from
ever
passing
on
another.
See
United
States
v.
Morgan,
313
U.S.
409,
421,
85
L
ed
1429,
1435,
61
S
Ct
999.
Thus,
experience
acquired
from
their
work
as
commissioners
would
be
a
handicap
instead
of
an
advantage.
Such
was
not
the
intendment
of
Congress.
333 U.S.
at 702,
92 L Ed at
1035.
83—71
The rationale
of the above cases could apply with equal
strength to the
instant proceeding.
Specifically,
they are
helpful
in evaluating
the impact
of
the County Board’s handling
of landfill issues prior to the
filing of the City’s application
on the SB—l72 process.
The Supreme Court of Illinois in E&E Hauling,
Inc.
V.
Pollution Control Board, 107 Ill.
2d
33,
481 N.E.2d 664,
(1985)
also discusses the issue
of bias
as
it relates
to the decision
maker’s prior activities.
Specifically,
the situation
in E&E
Hauling
is analogous
to the instant case.
However,
in
E&E
Hauling,
the alleged bias was
a bias
in favor
of the landfill.
The
Supreme
Court
states:
The
Village next claims
that
the hearing
was
unfair
because
both
the
county
and
the
district had earlier
approved the landfill by
ordinance.
The
village
thus
is
claiming
a
type
of
bias
that
has
been
called
“prejudgment
of adjudicative facts.”
(See K.
Davis,
3
~dministrative
Law
Treatise
sec.
19:4
(2d
ed. 1980).)
But
the ordinances were
simply
a preliminary to the
submission of the
question
of
a
permit
to
the
Agency.
Subsequently,
the
Act
was
amended
and
the
board
was charged
with
the
responsibility of
deciding
whether
to
approve
the
landfill’s
expansion.
The
board
was
required
to
find
that the six standards for approval under
the
amended
act
were
satisfied.
It
cannot
be
said
that
the
board
prejudged
the
adjudicative
facts,
i.e.,
the
six criteria.
This
conclusion
is
supported
by
the
line of
decisions
that
there
is
no
inherent
bias
created
when
an
administrative
body
is
charged
with
both
investigatory
and
adjudicatory
functions.
See,
e.g., Withrow
v.
Larkin
(1975),
421
U.S.
35,
47—50,
95
S.Ct.
1456,
1464—65,
43 L.Ed.2d 712,
723—25;
Scott
v.
Department
of
Commerce
&
Community
Affairs
(1981),
84
Ill.2d
42,
54—56,
48
Ill.Dec. 560,
416 N.E.2d 1082.
481 N.E.2d at
668.
In
E&E
Hauling
v.
Pollution Control Board,
116 Ill. App.
3d
586,
451 N.E.
2d 555
(2d Dist.
1983), the Second District adopted
a specific standard concerning bias in an SB—l72 proceeding.
Citing Cinderela Career and Finishing Schools, Inc.
v.
F.T.C.,
425 F.2d 583,
591
(D.C.
Cir.
1970),
the court found that a
disqualifying bias exists
if
a disinterested observer might
conclude that the decision maker had
in some measure adjudged the
facts as well
as the law of the case
in advance of hearing
it.
E&E Hauli~j,451 N.E.2d at 565—66.
8
3—72
—27-
Conseauently, the Board must look
to see whether
there
is
evidence that
a decision maker had adjudged the City’s
application prior
to completion
of the hearing process.
After
reviewing
the record,
including
information which was brought out
at the PCB hearing, the Board
finds only one incident which would
clearly
indicate bias.
Specifically,
the Board
is referring to
the instance when
four
County Board Members wore anti—landfill
buttons at hearing.
It
is the duty
of the County Board Members
to listen
to the evidence with
an open and
impartial mind and
make
a decision as
to
the six criteria based
upon that
evidence.
The
wearing
of
these
buttons
was
certainly
not
in
keeping with the quasi—judicial role that
the Board Members must
carry
out.
For
these
reasons,
the
Board
finds
that
County
Board
Members Bell, Barnard,
Connelly, and Giorgi were biased against
site location suitability approval for the City’s proposal.
It
follows then that these Board Members are to be disqualified from
any subsequent decision making process with
regard
to
the City’s
proposal.
As discussed above, many ex parte
contacts occurred between
the County Board Members and various members of the public.
As
stated by the Second District
in E&E Hauling,
Inc.
v. Pollution
Control Board,
116
Ill.
App.
3d.
586, 451 N.E.2d 555,
570
(footnote
2)
(2d Dist.),
“to
the extent that such ex
parte
contacts are improper, they are improper precisely because they
are outside the public record.”
The Second District also stated
that “unnecessary and avoidable contacts” should not be
excused.
Although the Board notes that the record
is not clear
as to how many of these contacts could have been avoided or were
unnecessary,
the record does indicate that these contacts did
influence the decisions of some County Board
Members.
The Board
has previously found that such
a relationship between
the ex
parte contacts and the decision renders the decision
fundamentally unfair.
Ash v.
Iroquois County Board,
PCB 87—29,
slip.
op.
at 15
(July 16,
1987).
After considering the nature, extent, and effect of these
ex
parte contacts, the Board
finds that the County Board’s decision
was fundamentally unfair.
However, this problem can be remedied
on remand by putting the substance of the ex parte contacts into
the record
so that the City has an opportunity to fully
respond.
The Board notes that the County Board Members
should
take great pains
to avoid
ex parte
contacts, but when such
contacts unavoidably arise,
they should be made part of the
record.
Certainly,
the County Board Members should not act
in
any way to
foster
or enhance the opportunity for
ex parte
contacts.
Specifically, the Board notes the
appearance
by
two
County Board Members on
a call—in radio
talk show.
Although
it
is not clear from the record whether
the purpose
of this radio
program was to discuss landfills
in general
or the City’s
proposal
in particular, the County Board Members should have
refrained from participating
in such an endeavor,
for it was
likely that specifics of the City’s proposal would be discussed.
83—73
—28—
Finally,
the
Board
notes
that
some
of
the
County
Board
Members
admit that they,
in their decision making process,
considered
evidence which was not
in the record.
This
is clearly
in violation of the procedure established by the Act.
The County
Board must make
a decision with regard
to the
six criteria that
is based exclusively on the evidence
in the record.
If this
requirement
is not met, the decision
is fundamentally unfair.
A related
issue concerns the public’s general opposition to
the
landfill.
The
Act
provides
that written comments from
the
public,
filed subsequent
to the close
of the hearing, must be
considered
by
the
decision
making
body.
Naturally,
these
comments are
a part of the record.
The Board
is well aware
of
the widespread,
anti—landfill sentiment among
the public.
However,
the mere fact that the County Board Members are elected
officials subject to constituent pressure does not indicate
that
the
County
Board
decision
on
the
whole
was
based
on
of f—the—
record public sentiment.
This issue was addressed by the Second
District
in Waste Management
of
Illinois,
Inc.
v.
Illinois
Pollution Control Board,
123 Ill. App.
3d 1075,
463 N.E.2d 969,
(2d Dist.
1984).
While
the
board
members were aware of public
opposition
because
of
the
statutorily—
mandated
public
hearings,
petitioner
has
not
demonstrated
that
the
board
members
decided
on
its application
as
a
result of the public
opposition
and
without
consideration
of
the
evidence.
The
only
factor
cited
by
petitioner
is
that more than half of the
LCB
Lake
County
Board
members
faced
reelection
within
two
months
of
the
date
of
the
decision.
This
fact,
however,
is
not
referenced
in
the
record,
and
more
important,
is
insufficient
to
establish
a
biased
decisionmaking
process.
Where
the
statute
requires the LCB to conduct a public hearing,
a
decision
does
not
become
unfair
merely
because
elected
officials
recognize
public
sentiment.
Petitioner
here
has
failed
to
sustain
its
burden
of
showing
that
the
procedures
of
the
LOB
or
the
decision
making
process
were
fundamentally
unfair.
463
N.E.2d
at
975.
The
City
also
contends
that
many
County
Board
Members
did
not
attend
the
hearings
and
were
unfamiliar
with
the
location
of
the
transcript,
and
thus
presumably
the
content
of
the
record.
The
Board
addressed
this
matter
to
some
extent
in
Ash
v.
Iroquois
County
Board
(supra).
In
the
instant
matter,
it
is
clear
that
the
transcripts
were
available
to
the
decision
makers.
That
some
individual
members
cannot
remember
their
location
several
months
after
the
matter
was
decided
does
not
necessarily
mean
that
the
83—74
—29—
decision was not based
on evidence
in the record.
The Board
notes that County Board Members have
an obligation
to familiarize
themselves with the record
in these proceedings and
render
a
decision based solely on that record.
The City has not shown that the County Board’s decision was
based merely on the political climate of the area, although some
County Board Members did base their decisions,
in part,
on
evidence not
in the
record.
In summary,
the Board
finds that
the County Board’s decision
was the result of
a fundamentally unfair process.
Several Board
Members were biased against the landfill, and these Board Members
are disqualified from any further participation
in this matter.
Secondly,
a number of ex parte contacts occurred which influenced
the decision of some County Board Members; this,
too,
results in
an unfair process.
Finally, many Board Members admit that they
based their decisions upon evidence not in the record.
This
violates the requirements
of
the Act.
The County decision was
much more
in the nature of
a legislative than quasi—judicial
decision.
Given
the above,
the decision may not stand.
The site location suitability process established by SB—l72
continues to be troublesome
to local decision makers,
the public,
and this Board.
The legislation gives broad decision making
power
to the local entities for determining
site suitability.
The Courts have held that the decision process
is to be strictly
quasi—judicial and that statutory notice requirements must be
rigidly upheld.
The fact that County Board members and
their
constituents normally interact at a legislative rather than
judicial level places the players
in
a frustrating, unfamiliar
position that often
leads to error when judicial rather
than
legislative standards must be applied.
In
Illinois,
local decision makers are currently involved
in
a variety of activities related to solid waste disposal.
This
includes representing
their governmental unit on local
and
regional panels developing long range disposal and management
plans, studying disposal
options, and interacting with various
interested groups.
This activity is
increasing as the Illinois
Solid Waste Management Act takes effect.
That Act in part
states:
2.
Public
Policy.
(a)
The
General Assembly
finds:
(1)
that
current
solid
waste
disposal
practices
are
not
adequate
to
address
the
needs of many metropolitan areas
in Illinois;
(2)
that
the
generation
of
solid
waste
is
increasing
while
landfill
capacity
is
decreasing;
*
*
*
(5)
that
state
government
policy
and
programs
should
be
developed
to
assist
local
83—75
—30-
governments
and
private
industry
in
seeking
solutions
to
solid
waste
management
problems.
(b)
It
is
the
purpose
of
this
Act
to
reduce
reliance
on
land
disposal
of
solid
waste,
to
encourage
and
promote
alternative
means
of
managing
solid
waste,
and
to
assist
local
governments
with
solid
waste
planning
and
management.
In
furtherance
of
those
aims,
while
recognizing
that
landfills
will
continue
to
be
necessary,
this
Act
establishes
the
following
waste
management
hierarchy,
in descending order of preference,
as
State policy:
(1)
volume
reduction
at
the
source;
(2)
recycling
and
reuse;
(3)
combustion
with
energy
recovery;
(4)
combustion
for
volume
reduction
(5)
disposal
in
landfill
facilities.
Local
officials
will
often
be
involved
concurrently
in
solid
waste
planning
activities
and
landfill
siting
proceedings.
They
cannot
ignore
either
of
these
functions.
They
must
take
care,
however,
to
keep
the
legislative
and
quasi—judicial
functions
separate.
Specifically,
they
may
not
discuss
the
details
of
a
specific
landfill
application
off
the
record
or
allow
their
off—
record
knowledge
to
influence
their
SB—l72
decisions.
The
law
provides
for
appeal
of
local
decisions
to
this
Board.
Under
certain
circumstances,
such
as
the
ones
in
the
instant proceeding,
the appeal process has built
in problems.
The
only
standard
of
review
available
to
the
Board,
under
current
case
law,
is
the
manifest
weight
of
the
evidence
standard,
which
requires
the
reviewer
to
view
the
facts
in
the
light
most
favorable
to
the
County.
The
Board
is
precluded,
under
current
case
law,
from
conducting
a
de
novo
review.
Waste
Management
v.
McHenry
County
Board,
supra.
This
Board
also
cannot
send
the
record
to
another
forum
for
a
fair
de
novo
review.
Where,
as
here,
the
County
has
been
improperly
influenced
in
its
decision,
the
applicant
would
essentially
be
doubly
penalized,
the
first
time
in
the
original
decision
making
process
and
the
second
time
in
the
review
process
which
gives
deference
to
the
original
decision.
The
Board
also
has
the
option
to
conclude
that
Winnebago
County
cannot
render
a
fundamentally
fair
decision
and
totally
reverse
the
County,
thus
allowing
the
application
to
proceed
to
the
Illinois
Environmental
Protection
Agency
for
decision
on
permits.
This option would
be
a severe penalty for the opponents
of
the
landfill
who
contributed
greatly
to
the
unfairness
of
the
process.
83—76
—31—
The Board will vacate and remand
the decision of the County
with the
following instructions:
a) Winnebago County Board
Members Bell, Barnard, Connelly, and Giorgi are disqualified from
participating further
in this matter;
b) The substance of known
ex
parte contacts shall be made
a part of the record and shall
be
the subject of an additional hearing;
and
C)
The Winnebago County
Board
shall
render
a decision based exclusively on the six
criteria of
Section 39.2 of the Act and exclusively upon evidence
in the
record.
This will allow the substance of most if not all ex parte
contacts,
as well as the content of radio and other
ads,
to be
reviewed on the record.
It will give all County Board Members
a
chance
to re—evaluate the record and render
a decision based
solely on that record.
The Board notes that the hearing
record
itself appears to be complete and developed in a fundamentally
fair manner.
This process should remove
the procedural clouds
from this proceeding and allow it to proceed on the merits.
This constitutes the Board’s finding
of fact and conclusions
of law
in this matter.
ORDER
The Board hereby vacates the decision of the Winnebago
County Board which denied site location suitability approval, and
this matter
is remanded back
to the Winnebago County Board.
IT
IS
SO ORDERED.
B.
Forcade concurred.
J.
Anderson and J.
T.
Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the /~~‘day of
,‘7#t.a.,,~.w.,
,
1987,
by
a vote
of
.5—2~
Dorothy
NI. Gunn,
Clerk
Illinois Pollution Control Board
33—77
