c~4~k

ILLINOIS POLLUTION CONTROL BOARD

February 22, 1984

INDUSTRIAL SALVAGE, INC.,     

)

Petitioner,

)

V.

)

PCB 83—173

)

COUNTY 

BOARD

OF MARION,      

)

)

Respondent.

JOHN D. LACKEY, ESQ. (LACKEY, WARNER & SAUER) APPEARED ON

BEHALF OF INDUSTRIAL SALVAGE, PETITIONER;

MICHAEL R. JONES, ESQ. (BRANSON, JONES & BRANSON) APPEARED

ON BEHALF OF SHIRLEY WATSON;

THE HONORABLE ROBERT W. 

MATOUSCH

(STATE’S ATTORNEY) APPEARED

ON BEHALF OF MARION COUNTY, RESPONDENT.

OPINION AND ORDER OF 

THE

BOARD (by B. Forcade):

This matter conies to the Board on a November 21, 1983

Petition by Industrial Salvage, Inc. (Nlndustrialu) seeking

review of a decision of the County Board of Marion County

(uMarionw) denying site location suitability approval for

Industrial’s regional pollution control facility. On December 1,

1983 the Board ordered Marion to file the record below, which

was filed on December 29, 1983. On January 11, 1984, Shirley

Watson (“Watson’) filed a motion for leave to appear, which was

granted by Board Order of January 12, 1984. On January 25, 1984,

Watson’ filed a response in the nature of an 

answer, 

to Industrial’s

Petition. The Board bearing was held February 2, j9$4,* at which

time Industrial tendered its brief. All responsive briefs were

due by February 7, 1984, however none were filed.

Industrial filed a Request for Site Approval with Marion on

July 19, 1983. That request sought approval for a 40 acre, addition

adjacent to Industrial’s current facility on Perrine Avenue in

exhibits were offered at this hearing except prior Board

opinions to support legal theories.

Therefore all subsequent

references to Exhibits in this Opinion will be to Industrial’s

Exhibits *1—15 (Pet. Ex.) and Objectors Exhibits *1—4 (Obj. Ex.)

as introduced at the Marion Hearing September 13, 1983, or to

Documents *1—22 (Doc.) as listed in the Marion Certificate of

Record on Appeal.

56-229

Centralia, Illinois. 

Neither

the existing nor the proposed

facility 

would

accept 

hazardous waste. The old City landfill,

which was

closed in 1972, is North and East of the proposed

facility. Industrial’s existing facility is to the West, and

a large wooded area without residences or structures is to the

South, From July 14 through September 13, 1983 Marion received

17 letters, objections, appearances or citizen petitions com-

menting on this matter. Marion’~public hearing was held

September 13, 1983. On October 11, 1983, Marion denied site

approval by a 

vote 

of 15 to 0. 

Marion

issued a written

decision 

November 8, 1983, containing the following findings:

1.  The proposed regional pollution control facility is

not

urgently necessary 

this time to accomodate

the waste needs of the area it is intended to serve.

2.

The

facility is not proposed to be operated in a

manner consistent with 

the

protection of the public

health, safety 

and welfare.

The history of the

applicant’s

operation of his existing regional

pollution control facility indicates numerous and

continuous violations 

of E.P.A.

regulations. No

evidence was presented by applicant to indicate

that the new pollution control facility would be

operatel in a manner consistent with E.P.A

regulations.

On

review, Industrial urges that

Marion’s finding the

proposed facility

was “not urgently necessary”,

conflicts

with

&

E Hauling Inc. v. Pollution Control Board, et. al., 71 Ill.

Dec. 587, 451 N.E.2d

555

(2nd District,

1983), is contrary to

the evidence, and

must 

he reversed.

Additionally,

Industrial

urges that finding 

#2 must he set aside in

that it 

did not

consider “site” suitability but “applicant” suitability, which

is beyond Marion’s authority 

and

relied on improper evidence.

Marion and Watson urge this Board to affirm the decision below.

The Marion decision to deny 

was

based on criterion #1 and

#2 of Section 39.2(a) of 

the

Environmental Protection Act (“Act”),

which provides:

The county board of the county 

the governing body of

the municipality, as determined by paragraph (c) of

Section 39 of this Act, 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 

accomodate the waste

needs 

the area 

is intended to serve;

2.  the facility is so designed, located and proposed

to be operated that 

the

public health., safety and

welfare ~iil1be protected;

56-230

Fundamental Fairness

As a preliminary matter, Section 40.1(a) of the Act 

requires

the Board to consider the fundamental fairness of the procedures

used by the County Board. Since the Marion hearing did not provide

an opportunity for cross—examination, the Board finds that Marion’s

procedures were not fundamentally fair. As explained below, fun-

damental fairness requires County Board procedures to afford

adjudicative due process to the participants, and adjudicative

due process requires an opportunity for cross—examination.

In E & B Hauling, Inc. v. Pollution Control Board, et. al.,

71 Ill. Dec. 587, 451 N.E,2d 555 (1983), the Second District

addressed the procedural requirements that apply to County Board

determinations regarding site suitability, After rejecting a

claim of constitutional due process for such proceedings, the

Second District held that the words “fundamental fairness” create

a statutory due process standard for such proceedings. Having

found due process to apply, the court proceeded to explain the

two types of due process (adjudicative and rule—making) and

determine which applies to County Board determinations. In so

doing the Second

Circuit equated County Board site suitability

determinations

with 

this Board’s determinations on variances.

While the line between 

adjudication and rule

making 

“may

not always he a bright 

one”, the basic

distinction

is

one “between proceedings for the purpose

of promulgating policy-type rules or 

standards, on the

ona hand, and proceedings des:Lgned to adjudicate

disputed facts in particular cases on the other.”

(United States v.

410

U.S. 224, 245, 35 L. Ed, 223, 239, 93 S. Ct. 810,

821 (1973).) Under Section

39,2 the Board’s decision

on the grant

or denial of 

permit 

turns on its

resolution of disputed fact issues, whether the par-

ticular landfill, or expansion, for which the permit is

sought meets the specific factual criteria set out in

section 39.2 of the ~\ct, The facts that the Board

relies on are developed primarily by the immediate

parties rat:her than acquired through the Board’s own

expertise.

Our supreme courL has held that the decision

whether to grant a variance from an environmental

regulation is quasi—adjudicatory, although the im—

position of conditions on the variance is rule making.

(Monsanto v. Pollution Control Board, 67 Ill.2d 276,

289—90 (1977). See also Environmental Protection

Agency v. PCB, 86 Ili.2d 390, 400 (1981); Willowbrook

Dev. Corp. v. Pollution Control Board, 92 Ill. App.3d

56~231

4

1074, iO8i-’82 ~19Si),) ;~n the factual criteria

invo1ve~

in th~ County Boarct~s 

decision under Section

39.2

are not: s:~ stantialiy orcader 

than

those in the

statutes

ir~o~~eh .~r tne ahcve’~cited

cases, we adopt a

similar

ru~e 

~‘c cc.

(SLip Op. at 

17—18).

At the

beginning of the Marion 

Public Hearing, the hearing

officer announced “There will he no ccoss—exarnin.ing anyone by any

of the attorne~’s fie sent” (L4dr~ofl

H

)

No cross—examination

occurred

from 

the

attorneys and 

no questioning by the public was

allowed.

it is

well established that 

adjudicative due process, and

this Board’s

determinations 

on variances, require an opportunity

for

cross—exariinttion 

(North Shore

Sanitary 

District v. Pollution

Control_Board, 2

111, App.3d 

797,

at 801 (2nd Dist., 1972);

Garces 

~~j~of  

Reg.

&

Education,

118 Ill. App.2d 206, at 224

(1969);

Smith 

flept~ot~e~& Education,

412 Ill. 332, at 348

(1952)).

In SI 1~2~:~w~codings,

L:h? p~~tc~~tialfor third party appeal

must also

he consiferech Sections 

39~2(f)

and 40.1(b)

of the Act

are silent 

to how, procedurally, a member of the public must

participate at the County hearing in order to assure access to

prospective third party appeal rights. The Act 

does not require

members of 

the puhi th, sing v or

~o~ether, to 

hire an attorney or

otherwise to lilt

~pprr~os~

~‘~:

the County public hearing as a

pre—condition far ansertiac thirO

party 

appeal rights.

Additionally, the

/~cL, and this Board~s 

regulations, generally

recognize public parttcipation 

rights in environmental matters.

The Board thercfoi:a iind~ that tHe County hearing must

reasonably

provide for the me.Lthrs of the 

public

to ask questions

and

make

statements in order to oreserve potential third party

appeal rights.

Since Marcon

did not provide 

an opportunity for cross—

examination, its orocedures

uere

not fundamentally

fair.

Therefore, the Board

will

cot

reach the 

other issues in this

case.

T~i

City of tat

p~ia u. Pollution Control Board, 117 Ill.

~pp.3d 673.7 4:72 h~~1di378 ~ 2~ the Third 

District stated the

obliqa tions for ccvhew of adjucticatory proceedings:

Our fLrst duty in

consrdering 

a complaint for

administrati’:~e review is 

determine if the inferior

tribunal. appl:Led tac proper test to record before it.

(Board of Bducation of

Minooka v. ingels, (1979), 75

Ill. ~pp~3d ~35~

IlL

T)C~,

153, 394 N,E,2d 69,)

Where, as

here, the inferior tribunal 

applied the wrong

standard of review to the evidence,

the resulting

finding is invalid, and there is no valid order subject

56-232

to administrative review.

(Board of Education of

Minooka v. ~~g~els.)

And, where there is no valid order

subject to our review, we are forced to remand the

matter to the inferior tribunal so that it might

reconsider its decision in light of the appropriate

standard. Board of Education of r4inooka 

v. Ingels.

Here, the Board has determined that the procedure below was

fundamentally unfair. Thus, there is no valid order subject to

review. The Board therefore remands this case to Marion for an

additional hearing pursuant to Section

39.2(d) to cure this

procedural defect,

The Board construes this remand order as restarting the

hearing and decision timeclocks of Section 39.2 (d—e)

ORDER

The decision of the Marion County Board is invalid and this

case is remanded to the Marion County Board for further proceedings

consistent with the foregoing Opinion.

IT IS SO ORDERED.

Board Member 3. T. Meyer dissented.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby cer~ifythat the above Opinion and Order

was adopted on the ~

___________

1984 by a vote of

_-.

~

Christan L.

Moffett,

~, ~/~

c~4~k

Illinois Pollution Control Board

56-233