ILLINOIS POLLUTION

CONTROL BOARD

April

4~

1985

BOARD OF TRUSTEES OF CASNER

TOWNSHIP,

JEFFERSON COUNTY

ILLINOIS; CITIZENS AGAINST

WOODLAWN AREA LANDFILLS;

CYNTHIA CARPENTER;

ERNEST

CARPENTER; HATIE

HALL; BYRON

KIRKLAND;

PATRICIA KIRKLAND;

PEG OtDANIELL;

RoNL:~

0’ DANIELL;

DENNIS S~iI~OYER;

and PATRICIA

SHROYER~

Petitioners,

PCB 84~175

COUNTY OF JEFFERSON

nod

SOUTHERN ILLINOIS

LA:~1~’ILL

INC.,

Respondents~

JOHN PRIOR,

Petitioner,

PCB 84~-l76

(Consolidated)

COUNTY OF

JEFFERSON and

SOUTHERN ILLINOIS LANDFILL,

INC.,

Respondents

DISSENTING

OPINION (by B~ Forcade):

I share

the concerns of the

majority regarding certain

actions of the

Jefferson County

Board in this proceeding.

However, on two

issues I disagree with

the majority and,

therefore, I

dissents The first

issue is the conflict of

interest argument

regarding Mr. Miller;

the second is the 100

year flood plain

issues

The majority

finds that Mr~

Miller’s activities did not

reach the level

of a disqualifying

conflict of

interest and

even

if it did, the

conflict was cured by the

language of his

voting. On both

points, I reach an

opposite conclusion, The

majority has

quoted general legal

principals

from

a portion of In

Re:

Heirich, 140 N~E~2d825 (1956), the most relevant Illinois

Supreme Court

case on conflict of interest. While those are

63~311

---

important

considerations, a more

important issue

is the actual

decisive utterance

in Heirich,

The Heirich

Court held that

on the facts demonstrated, the

adjudicating

commissioner had

a sufficient connection with one of

the participants in

the proceeding

to constitute a conflict of

interest. That

connection was

described by the Court, The

adjudicating

commissioner was

a member of a law firm, his law

firm represented

several railroads,

the railroads were members of

an association,

and the association

financed and directed the

prosecution of

the proceedings.

The facts before this Board show

a far more direct

con ~tion between

the adjudicator Miller and

the applicant. Mr.

Mr~er was

employed or retained by Southern,

during the pendancy ci

~:he

adjudication, to perform work on the

site in question,

whico would help

develop information regarding

site suitability,

on otich he

would vote. I believe that facts

show a more direct

connection

than that found to be a conflict in

Heirich, and I

would find a conflict

here.

I believe the

majority~s

focus on the minimal and transitory

nature of the

conection to be

misdirected. If

$150

is too small,

what about $300 or

$500? This

Board should not be establishing

the “going rate”

for elected

officials, If the appropriate

connection is

established, the

amount of the

fee is irrelevant.

The Court in

Heirich states

that:

It is

classical principle

of jurisprudence that

no man

who has a personal

interest in the subject

matter

of decision in

a case may sit in judgment on

that case.

The

principle is as applicable

to

administrative

agents, commissioners, referees, masters in

chancery,

or other arbiters of

questions of law or

fact

not holding judicial

office as it is to those

who are

technically judges

in the full sense of the

word,

Id. at 838.

The Court

goes on to say that:

For

the guidance of this

court’s commissioners in

future

cases and of all other

persons required to

find facts or apply law

in adversary proceedings,

judicial or

administrative,

we hold that

when such

an arbiter hasa

financial

interest in the subject

matter,

~

he

personally be a man of the

idious robit

,

it

is his d

ut to recuse

himself. ~j

dos

alleriSed (Emphasis

added). Id.

at 839.

Miller was an~arbiter~in an adversary proceeding. He had

a clear

financial interest in the subject matter and was

challenged on

that issue during the vote. I would find a

conflict of

interests

63-312

---

The reason

courts draw such a

‘~bright

linen in these

situations is it

is nearly impossible

to probe an adjudicator’s

mind, after the

fact, as to whether

he was unfairly influenced by

a conflict of

interest, As the

Illinois Supreme Court and U.S.

Supreme Court

have stated,

~

villev.Wehrle,

173 N.E. 165

(1930) at 167,

quoting Crawford v. US, 212 U.S. 183:

Modern methods of doing business and modern

complications resulting therefrom have not

wrought any change in human nature itself, and

therefore have not lessened

or

altered the

generaJ. tendency among men, recognized by the

common ~cw, to look somewhat

more

favorably,

though perhaps frequently unconsciously, upon

the side of the person or

corporation

that

employs them, rather than upon

the

other

side. Bias or prejudice is such an elusive

condition of the mind that it is most

difficult, if not impossible,

to

always

recognize its existence, and

it

might exist in

the mind

of one (on account

of

his relations

with

one of the parties) who was quite

positive

that he had no bias, and said that he

was

perfectly able to decide the question

wholly

uninfluenced by anything but the

evidence.

The law therefore

most wisely says

that, with

regard to

some of the relations

which

may exist between

the juror and one of

the

parties, bias is

implied, and evidence of

its

actual existence need

not be given.

In

~! rville, the Supreme Court succinctly stated the

disposition

of an adjudicated case

involving an interested

adjudicator:

Appellants contend that

Myers was not a

competent

and disinterested

commissioner. If

he

was not, his participation

infects

the

action

of the whole body

and makes it

voidable. Rock

Island

& Alton Railroad

Co. v.

Lynch,

23 Ill. 645; State

v. Crane, 36 N.J.

Law 394.

Neither can I

agree with the

majority view

that

any

hypothetical

conflict was cured

by changing his vote from “no” to

“pass.” That,

to an unconscionable

degree, elevates form over

substance.

At the County

Board meeting~to vote on landfill suitability,

upon motion

to deny approval, Mr. Miller responded to the

prompt

of the Clerk

by voting no, However, the roll call was

interrupted

as follows (PCB Ex. 15; tape recording of County

Board Meeting):

63-313

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Person A:

Point of order,

Gene Wells:

Person A:

It~s 13. With one more vote,

it would be a tie change the

outcome possibly.

Person B:

A tie vote means “no,~

Gene Wells:

There are 14 people present.

14 people being present, the

majority of 14 is 8. Mr.

Miller, there are some

questions on conflict of

interest, Do you want the

public to disclose if you feel

that you are in any nature in

conflict on this?

Mr. Miller:

I do not feel that I am in any

conflict whatever, I would not

be reluctant to make my vote a

pass under the circumstances.

It would be the same,

Gene Wells:

Mr. Mill&r wishes to ab~tain.

Thus,

at the time of voting, Mr. Miller~sstated reason

for

changing

his vote from ~no~ to ~pass,~ was that it had the same

effect as a

no vote, Later in the meeting a converse vote was

taken on a

motion to approve the landfill. Mr. Miller voted

yes. At

the PCB hearing, Mr. Miller stated that he changed his

vote on

the denial motion from “no” to “present” because that

was

the same

as a no vote (R. 70). Mr. Miller admitted that he

changed

the wording of his vote because it would not change

the

impact.

Therefore, I cannot join the majority in finding

that

the change

in wording cured any hypothetical conflict, that is

directly

contradicted by the only evidence before the Board,

It is absurd to say that Mr. Miller~ssemantic gymnastics

could

cure a conflict of interest, Whatever language was used

he

did participate

in the voting. As he intended, his

participation

was counted as a vote in favor of the landfill,

and

that

participation affected the outcome, It has frequently

been

held that

the vote of a council member who is disqualified

because

of an interest in regard to the subject matter being

considered

may not be counted in determining the necessary

majority

for valid action ~

ço. v. Beverly Hills, 107 Cal

App 2d 260,

237 P2d 32; ~

Ramse

,

188 Iowa 861, 175 NW

1; Davis v.

Jenkins, 314 Ky 870, 238 SW2d 475; Woodward v.

Wak~IIdT~6Mich 417, 210 NW 322; ~

of

Hellertown, 370 Pa 420, 88 A2d 594; Smith vu_Centralia, 55

Wash 573,

104

P

797.

83-314

---

—5—

100 Year

Flood

Plain

I also disagree with the majority regarding the 100 year

flood plain. Under Section 39.2(a)(4) of the Act, site location

suitability

may

only be

approved

ifs

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.

At the County hearing Southern stated there is a creek along

the west side of the landfill (CBR 29) and they have plans for a

compensatory flood storage area (CBR 30). Southern testified

that the facility is flood—proofed (CBR 43). On the issue of

Department of Transportation (DOT’) determinations, three

exhibits were entered (C.B. Record Nos.l0, 11 and 49). C.B.

Record Nos.lO and 11 appear to be a form letter from DOT to two

different people, the salient portion of which statess

Inasmuch as the site is located within a rural

area and on a stream with a drainage area of

less than ten square miles, an Illinois

Department of Transportation, Division of

Water Resources permit will not be required

for the landfill.

With regard to Section 39.1 of the Illipois

Environmental Protection Act, this letter

constitutes Illinois Department of

Transportation approval upon your receipt of

all appropriate Illinois Environmental

Protection Agency approvals.

C.B. Record No. 49 (also called Citizen Exhibit 7), is a letter

from the same DOT Chief Flood Plain Management Engineer, who

wrote the language above, and provides in relevant parts

As I pointed our during your visit, there is a

stream running through the site so, obviously,

a portion of the site is within the 100—year

flood plain of that stream. However, no study

has been completed by this Department to

define the extent of such.flood plain. Also,

due to the fact that the stream drains less

than ten square miles at the site, it is not

within our regulatory authority and,

therefore0 a Department of Transportation,

Divison of Water Resources

permit

is not

fl315

---

—6--

I als~iIadvisedyou during our meeting that the

Departlient of Transportation has no specific

standards regarding flood—proofing of regional

pollution control facilities. It is my

understanding that the Illinois Environmental

Protection Agency does. Therefore, if a

proposed facility meets all of the

requirements of the Illinois Environmental

Protection Agency regarding flood—proofing, it

is deemed to comply with the requirements of

Chapter 1H~I1,t~, Section 39.1 insofar as the

Departmen~of Transportation is concerned.

The exhibits represent the best evidence on what DOT has

determined regarding this facility and they develop a common

theme:

1. At least a portion of the site is within a 100 year

flood plain;

2. DOT has no standards and requirements regarding flood—

proofing facilities; and

3. DOT will approve flood—proofing if a facility meets all

Illinois Environmental Protection Agency requirements

and is approved by them,

It is clear from the record below that there was no evidence

that the facility is outside the 100 year flood plain as

determined by DOT. Also, since there was no evidence of Illinois

Environmental Protection Agency approval, there was no evidence

the facility met flood—proo~fingrequirements and was approved by

DOT. Therefore, the facility did not meet Criteria No. 4.

I note, with some chagrin, that DOT’S posture places flood

plain facilities in a Catch—22 situation, For the facility to

obtain IEPA approval, they must have County Board approval; to

obtain County Board approval, they must obtain DOT approval; and,

to obtain DOT approval they must have IEPA approval. The net

effect is to absolutely preclude 100 year flood plain facilities

until DOT changes its posture or the General Assembly changes the

statutory language of Criterion No. 4. While I sympathize with

Southern~sdilemma, unlike the majority I cannot rewrite the

clear language of Criterion No, 4 to allow this bootstrapping.I

would have simply reversed Southern’s “deemedapp~oved” approval.

Board Member

63-316

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—7—

I, Dorothy ?1. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was

submitted on the

~

day of

______________,

1985.

Dorothy M. /Gunn, Clerk

Illinois Pollution Control Board

83-317