ILLINOIS POLLUTION CONTROL BOARD
April 21,
1994
RODNEY B. NELSON,
III,
M.D.,
)
)
Petitioner,
)
v.
)
PCB 94—51
)
(Landfill Siting Review)
KANE
COUNTY,
KANE
COUNTY
)
BOARD,
and WASTE MANAGEMENT
)
OF ILLINOIS, INCORPORATED,
)
Respondents.
CITY OF GENEVA,
)
)
Petitioner,
)
v.
)
PCB 94—58
)
(Landfill Siting Review)
WASTE MANAGEMENT OF ILLINOIS,
)
(Consolidated)
INC.
and
COUNTY
BOARD,
COUNTY
)
OF
KANE,
STATE OF ILLINOIS,
)
)
Respondents.
ORDER OF THE BOARD
(by C.A. Manning):
The matters pending before the Board are consolidated third-
party appeals wherein the petitioners are challenging the local
landfill siting decision of the Kane County Board (“County
Board”) granting expansion of Settler’s Hill Landfill in Geneva,
Illinois.
Rodney B. Nelson,
III, M.D.
(“Dr. Nelson”)
filed the
first petition February
1,
1994 and the City of Geneva
(“Geneva”)
filed the second on February 9,
1994.
These cases were consolidated by our order of February 17,
1994, as is our usual practice with multiple petitions
challenging a local siting decision.
In that order, we
indicated Dr. Nelson’s petition was insufficient to ascertain
whether he has standing to prosecute a third-party appeal
pursuant to Sections 40.1(b)
of the Environmental Protection Act
(“Act”).
(415 ILCS 5/40.1(b).)
We also set the consolidated
cases for hearing and asked that all challenges to Dr. Nelson’s
standing be filed with the Board on or before March
1,
1994.
Consequently on March
1,
1994, co-respondent Waste
Management of Illinois
(“WMII”), the applicant for expansion of
Settler’s Hill,
filed a motion to dismiss Dr. Nelson’s petition
relying on our decision in Valessares
v.
County Board of Kane
County
(July 16,
1987),
79 PCB 106, PCB 87—36.
The motion
2
alleges Dr. Nelson lacks standing under Valessares because he did
not attend the public hearings held by Kane County and by failing
to do so,
Dr. Nelson did not “participate” within the meaning of
Section 40
•
1(b).
In response,
Dr. Nelson, Geneva and Kane County
all request that we deny WHII’s motion to dismiss and allow Dr.
Nelson’s petition for review to proceed.
(Kane County’s Motion in
Support of Rodney B. Nelson’s Standing, March
3,
1994; Nelson’s
(Response
to Standing Challenge, March 7,
1994; and Geneva’s
Response to WMII Motion to Dismiss and Other Matters, March 14,
1994.)
Thereafter, on April
4,
1994,
Geneva filed a motion for
summary judgment.
Alleging an insufficient record, Geneva asks
we grant summary judgment, or in the alternative, that we compel
the County Board to supplement the record with, among other
things, documentation demonstrating the jurisdictional
prerequisites of Section 39.1(b) were satisfied below.
The
County Board filed a response on April 14,
1994 offering copies
of pages already contained in the record
(C—2318 and C-2360)
evidencing the statutory jurisdictional requirements of Section
39.2(b) were in fact, met.
We have also received, and we hereby
grant,
a motion for leave to file a reply in support of Geneva’s
motion for summary judgment on April 18,
1994,
in addition to a
reply to the County Board’s response by Dr. Nelson on April 18,
1994, and a response to Geneva’s motion for summary judgment from
WMII on April 15,
1994.’
For reasons more fully explained below, we hereby grant
WMII’s Motion to Dismiss Rodney
B. Nelson, III, M.D. By this
order, we also deny Geneva’s motion for summary judgement;
however, we grant Geneva’s request to compel the production of
documentation.
MOTION TO DISMISS
We grant WMII’s motion to dismiss and do so because we
consider the language of Sections 40.1(b) and 39.2(d) to be plain
and unambiguous.
Section 40.1(b) provides in relevant part:
If the county board
~*
grants approval under Section
39.2 of this Act, a third party other than the
applicant who participated in the public hearing
conducted by the county board
***
may petition the
Board within 35 days for a hearing to contest the
approval....
(415 ILCS 5/40.1(b).)
And, Section 39.2(d) provides:
‘All other motions filed in this matter are resolved by virtue
of the entry of this order.
3
At least one public hearing is to be held by the county
board ~
no sooner than 90 days but no later than 120
days from receipt of the request for site approval,
such hearing to be preceded by published notice in a
newspaper of general circulation.
*~
The public
hearing shall develop a record sufficient to form the
basis of appeal of the decision in accordance with
Section
40..
of this Act....
(415 ILCS 5/39.2(d).)
Section 40.1(b)
contains the requirement of “participation in a
public hearing” and Section 39.2(d) more fully explains what the
legislature meant by “public hearing.”
The legislature describes
a public hearing as,
“at least one public hearing”, “such hearing
to be preceded by published notice” and “the public hearing shall
develop a record.”
When read together, Section 40.1(b) and
39.2(d) expressly grant a third party the right to bring
a
challenge to a local siting decision if he participated in the
public hearing.
Our role is to effectuate the intent of the legislature and
the first role of statutory interpretation is to examine the
express language of the statute, giving that language its “plain
and commonly understood” meaning.
(Scadron v. City of Des
Plaines,
153 Ill.2d 164,
606 N.E.2d 1154,
1163.
We may look to
legislative history when we consider issues of statutory
construction.
Even if we were to agree that an ambiguity is
present in the statutory language, the legislative history
supports our reading of the statute.
On June 17,
1981 in debates
before the Illinois House of Representatives, Representative Peg
Breslin, one of the bill’s sponsors, stated that appeal rights to
the Board are given in this law to “any interested third party
that participates in the hearing before the county board or the
governing body of the municipality.”
(S.B.
172, 82nd General
Assembly,
House Transcript of Floor Debate on 3rd Reading, June
17,
1981, State Representative Peg Breslin, at 55-56.)
Further,
in the Illinois Senate debates on July 1,
1987,
Senator Vince
DeNuzio, the sponsor of SB 172 in the Senate, similarly stated
that third parties have the right to appeal “if they are involved
in the initial siting hearings.”
(S.B.
172, 82nd General
Assembly, Senate Transcript of Floor Debate, Conf. Committee
Report, July
1,
1981, Senator Vice DeMuzio.)
In Valessares v. County Board of Kane CountY (July 16,
1987),
79 PCB 106, PCB 87—36 and Slates v. Illinois Landfills,
Inc.,
(July 2,
1993)
—
PCB
—,
PCB 93—106, we held that
“participation” is more than submitting a public comment after
the close of a public hearing.
Here, there is no factual issue
concerning Dr. Nelson’s participation in the public hearings held
on September 21,
1993 and October
6,
1993;
it is undisputed that
Dr. Nelson did not participate in the actual hearings and,
further, was not even present at these public hearings.
Rather,
his “participation” before the County Board was limited to his
4
having filed a public comment after the hearing, pursuant to his
statutory right under Section 39.2. The parties argue that the
filing of this public comment, along with Dr. Nelson having taken
sufficient time to “educate himself” concerning the issues,
provides a sufficient factual basis to conclude that Nelson is a
“third party who participated in the public hearing” pursuant to
Section 40.1(b).
We disagree.
Dr. Nelson, the County Board and Geneva essentially argue
“public hearing” encompasses the entire “public process” and
restriction of participation to attendees of the “public hearing”
leads to the absurd conclusion that someone who attends only a
small portion of one hearing or simply remains silent can file an
appeal, but a citizen such as Dr. Nelson, who has educated
himself and submitted a public comment held by the County Board,
cannot.
Although Section 39.2(c)
allows any person to file
comments concerning the appropriateness of the proposed site, we
read Section 40.1(b)
to clearly require participation at the
siting hearing itself.
While we have some degree of sympathy for
the argument that Dr. Nelson may have been involved to a greater
extent than someone who simply observed the hearing itself, the
specific holding that mere attendance at a landfill siting
hearing constitutes “participation” and therefore confers
standing to appeal,
is not an issue before us in this case. (~g~
Zeman v. Villaae of Summit
(December 17,
1992)
—
PCB
—,
PCB
92-174 and PCB 92-177
(cons.).)
Therefore,
if any re—examination
of that holding is necessary,
it must occur under a more amenable
set of facts.
In this case, the record submitted to us for review by the
County Board contains no mention of Dr. Nelson, nor does it
contain any arguments or comments made by him at hearing that
were even arguably relied upon by the County Board in the
decision which is before us for review.
While Dr. Nelson, the
County Board and Geneva argue for a broader interpretation of
what it means to have “participated in the public hearing” than
what this Board has already developed in Valessares, we cannot
and will not do so in this context.
Based upon Valessares, Dr.
Nelson clearly did not participate in the public hearings since
he did not even attend these hearings.
Therefore,
Dr. Nelson’s
petition for review is dismissed based upon his lack of standing
to appeal.
Nonetheless, even though Dr. Nelson is no longer a
petitioner in the landfill siting decision appeal
(PCB 94—51 or
PCB 94-58), as a member of the public, he is entitled to
participate in the Board hearing which will be held concerning
the petition for review properly filed by Geneva.
Scheduled for
April 26,
1994,
this hearing will concern issues similar to those
raised by Dr. Nelson himself.
The extent of participation of
a
member of the public in Board hearings is set forth in our Board
procedural rules which allow for members of the public to offer
5
reasonable oral testimony during the course of the hearing.
(35
Ill.
Adm.
Code 103.203.)
MOTION FOR
SUMMARY JUDGMENT
Geneva’s April
4,
1994 motion for summary judgment asks that
we reverse the County Board’s siting decision granting expansion
on the basis the record of decision is deficient.
Alternatively,
Geneva requests we compel the County Board to supplement the
record of decision with documentation satisfying the deficiencies
raised in the motion.
By our order today, we hereby deny
Geneva’s motion for summary judgment although we grant a portion
of Geneva’s alternative relief as further explained below.
Geneva originally argued in its motion for summary judgment
that the record of decision as submitted by the County Board
failed to show the jurisdictional prerequisites of Section
39.2(b) were met because there was no evidence WMII had noticed
the owners of the property
located
within
the
subject
area
no
later than 14 days prior to filing the application.
In its
response, the County Board resubmitted pages C-2318 through C-
2360 of the record showing service by registered mail.
Subsequently,
in Geneva’s reply in support of its motion for
summary judgment, filed on April
18,
1994 accompanied by a motion
for leave to file, Geneva additionally argues that three of the
registered mail certificates do not show a date of delivery
(C-
2325 and C-2329) and despite the showing of the registered mail
service, the record remains jurisdictionally deficient on its
face.
We find that there
is a genuine issue of material fact which
must be resolved at hearing.
Our review of the original record
does in fact show missing delivery dates on the registered mail
receipts for Johnson Controls Battery
(C-2325), Royce and
Jacqueline Paydon (C-2329) and for an illegible addressee, with
an article number R694 952 070.
Pages C—2332 and C-2333 show a
list of those who were personally served which includes Johnson
Control Battery and the Paydons.
However, Pages C-2335 through
C-2358, which are the affidavits supporting service, contain no
affidavit going to service on the Paydons or Johnson Control
Battery.
Thus,
because there
is a potential discrepancy and an
issue of fact is present, the case must go to hearing on April 26
as scheduled.2
2Geneva correctly raised the issue that the record of
decision omitted “Exhibit 1”, the County Board’s Solid Waste
Management Plan, which was offered during the public hearing
before the County Board.
Offering apology for a clerical
inadvertence, the County Board filed
Exhibit
1
as part of its
response on April
14,
1994.
We find no prejudice has resulted
6
Next,
Geneva
argues
for summary judgment based on the County
Board’s landfill siting ordinance,
93-85, SIV(C) (1) equating it
with
Section
39.2(b)’s
“statutory”
jurisdictional
prerequisites.
Geneva argues that County Board did not meet the requirements of
its
own statute, and therefore,
failed to satisfy the
jurisdictional requirements.
In response, both the County Board
in its April 14,
1994 response and WMII,
in its April 15,
1994
rsponse, argue that landfill siting procedure ordinances have
been historically considered in the context of whether the
procedures employed by the local siting authority were
“fundamentally unfair” rather than whether the procedures are
“jurisdictional.”
(~
e.a. DalY v. Villacie of Robbins,
(July
1,
1993)
PCB
,
PCB 93—52 and 93—54
(cons.).) Again,
this
issue T~appro~iatefor hearing.
The argument raises a mixed
issue of fact and law sufficient to warrant denial of the motion
for summary judgment.
Finally, Geneva requests that we compel the production of
the closed session transcripts from meetings held by the County
Board
on
July
13,
1994
and
August
10,
1993.
As
best
we
can
ascertain
from
the
pleadings
before
us,
the County Board
(or a
portion thereof) met on those dates.
Concerning Geneva’s request
for production of the transcripts of the meetings, the County
Board merely responds that it would be willing to provide Geneva
minutes to these meetings in “discovery” and,
if Geneva still
believes those minutes should become a part of the record,
“it
can
proceed
with
its
motion
at
hearing”.
(County
Board
Response,
at
6—7.)
The County Board’s response misses the point, both in terms
of
Geneva’s
request
and
this
Board’s
obligation to proceed
expeditiously and fairly concerning all issues relevant in a
landfill siting appeal.
One of those issues is that the public
siting process held by the governmental unit comports with basic
standands of fundamental fairness.
The gravamen of Geneva’s
argument is
that
a
record
of
these
meetings
might
well
be
relevant to its arguments regarding fundamental fairness and our
review of those arguments.
The County Board makes no claim
regarding the inappropriateness of discovery or that the
transcripts do not exist, and,
in fact, attested to its
willingness to provide Geneva with minutes of the meetings.
In that the hearing in this matter is scheduled for April
26,
it is imperative that a determination on Geneva’s request to
compel be made forthwith.
Therefore, we order that the
County
Board deliver to the City of Geneva, by noon on April 25,
1994,
a
clear transcription of any portions of these meetings that
contain discussion concerning the Settler’s Hill landfill.
If no
written transcription exists, the actual tape made by the Clerk
from the late filing of this supplement to the record.
7
of the Kane County Board,
if audible, will suffice.3
IT IS SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution control
Board, here
certify that the above order was adopt~don the
day of
________________
,
1994, by a vote of
~
-~
Dorothy M.
Gun,x3’, Clerk
Illinois Pollution Control Board
3while
the
pleadings
seem
to indicate that the County Board
classified these executive sessions pursuant to the “litigation”
exemption of the Open Meetings Act, this exemption “does not
encompass deliberations of a public body acting in a quasi-
judicial capacity on matters before it for decision.”
(1983 Ill.
Att’y Gen. Op.
10.)
Thus,
any discussions concerning the County
Board’s concerns or interests in the landfill expansion and their
upcoming public hearing concerning this expansion would not be
precluded from discovery based upon an Open Meetings Act
exemption.