ILLINOIS

POLLUTION

CONTROL

BOARD

May 19,

1994

CONCERNED CITIZENS FOR A

BETTER

ENVIRONMENT,

Petitioners,

PCB

 94—44

)

 (Landfill Siting Appeal)

CITY OF

HAVANA

and

SOUTHWEST

ENERGY

CORPORATION,

Respondent.

GEORGE MUELLER AND RICCA C. SLONE,

APPEARED

ON BEHALF OF

THE

PETITIONERS;

DONALD

 BOGGS,

APPEARED

ON

BEHALF

OF

THE

RESPONDENT

CITY OF

HAVANA;

AND

ROBERT N.

OLIAN,

SIDLEY

AUSTIN,

APPEARED

ON

BEHALF

OF

THE

RESPONDENT

SOUTHWEST

ENERGY

CORPORATION.

OPINION

AND

ORDER

OF

THE

BOARD

 (by G.

 T. Girard):

This matter is before the Board on a third—party appeal of a

decision by the City of Havana (Havana) granting site location

suitability approval for a new regional pollution control

facility to Southwest Energy Corporation (Southwest).

 This

appeal is filed pursuant to Section 40.1(b) of the Environmental

 Protection Act

 (Act)

 (415 ILCS 5/1 ~

 (1992)).

 Concerned

Citizens for a Better Environment (CCBE)

 filed this appeal on

January 25,

 1994.

The Board’s responsibility in this matter arises from

Section 40.1 of the Act.

 (415 ILCS 5/40.1

 (1992).)

The

 Board is

charged, by the Act, with a broad range of adjudicatory duties.

Among these is adjudication of contested decisions made pursuant

to the local siting approval provision for new regional pollution

control facilities, set forth in Section 39.2 of the Act.

 More

generally, the Board’s functions are based on the series of

checks and balances integral to Illinois’ environmental system:

the Board has responsibility for rulemaking and principal

adjudicatory functions, while the Board’s sister agency, the

Illinois Environmental Protection Agency (Agency) is responsible

for carrying out the principal administrative dutjes,

inspections, and permitting.

 The Agency does not have a

statutorily-prescribed role in the local siting approval process

under Sections 39.2 and 40.1, but would make decisions on permit

applications submitted if local siting approval is granted and

upheld.

2

Hearing on this matter was held on April

6,

 1994, before

hearing officer Phillip Van Ness.

 Several

members

of the public

attended and presented testimony at hearing.

 Briefs were due to

be simultaneously filed on April 19,

 1994.

 Southwest’s brief was

received on April

 19, 1994, and CCBE’s brief was received on

April 20,

 1994.

For the reasons detailed in this opinion, the Board finds

that the siting proceedings before the City of Havana were

fundamentally unfair.

Outstanding Motion

On May 6,

 1994, the Board received a motion filed by

petitioners to supplement authority.

 The motion asked the Board

to accept a copy of a U.S. Supreme Court case which deals with

whether incinerator ash is a hazardous waste.

 Because the Board

does not reach the criteria, the motion is denied as moot.

BACKGROUND

Southwest

 submitted an application for siting approval of a

new regional pollution control facility to accept and incinerate

refuse—derived fuel for the production of electricity on July 9,

1993.

 (C000001—0055)’

 Southwest submitted this application

after a request was made by Havana asking Southwest to file an

application.

 Southwest had previously submitted an application

to Havana which was withdrawn.

 (Tr. at 144-145; C003268.)

Southwest’s application indicates that it will subcontract

the construction and operation of the facility to companies

experienced in “their design and operation”.

 (C000004.)

Southwest proposes to convert 1,800 tons per day of refuse-

 derived fuel

 (RDF)

 to energy.

 (C000008.)

RDF

will be produced

offsite and shipped to Havana.

 (C000009.)

In September,

 1993,

 after the application was filed, the

Havana Chamber of Commerce hosted a luncheon featuring Energy

Answers president Pat Mahoney.

 (Tr. at 242.)

 Energy Answers

would be contracted to construct and operate the facility.

(C000226.)

 Also in September of 1993, Southwest sponsored a trip

to visit a municipal waste incinerator operated by Energy Answers

in Massachusetts.

 (Tr. at 75,

97,

 126,

 164, and 237—239.)

The

facility is called Semass.

3The

record before the City of Havana will be cited as “C00_

“;

 the transcript from the hearing before the Board will be cited

as “Tr. at

_“;

 the petitioners’

 brief will be cited as “Pet.

Br.

at

_“;

 petitioners’ exhibits will be cited as “Pet.

Exh.

_“;

respondent’s brief will be cited as “Res.

 Br. at

_“.

3

Ms. Christine Zeman was contacted by the mayor of Havana who

inquired if Ms.

 Zeman was interested in serving as hearing

officer for the siting hearing.

 (Tr. at 31.)

 The mayor

additionally asked Ms.

 Zeman if she would “assist in the

development of a siting ordinance to direct how the proceedings

would go”.

 (Tr. at 31-32.)

 Ms. Zeman agreed to act as hearing

officer and draft the siting ordinance.

 In addition, subsequent

to the close of the record at the local level, Ms. Zeman

presented a document entitled “Hearing Officer’s Report to the

City of Havana:

 Recommended Findings of Fact and Proposed

Conclusions of Law”.

 (C003238—3259; Tr. at 42.)

Public hearings were held on October 26,

 27 and November 2,

1993.

 (C000099-1084.)

 A public comment period followed and on

December 21,

 1993, Havana voted to approve siting of the

facility.

 (C001767—2864 and C000056—0077.)

 This appeal

followed.

LEGAL

FRAMEWORK

In appeals of local siting decisions, the Board must review

the areas of jurisdiction and fundamental fairness.

 Section 40.1

of the Act requires the Board to review the procedures used at

the local level to determine whether those procedures were

fundamentally fair.

 (415 ILCS 5/40.1

 (1992); E

 & E Hauling, 451

N.E2d at 562.)

 In E

 & E Hauling.

 Inc.

 v. IPCB (2d Diet. 1983),

116 Ill.App.3d 586, 594, 451 N.E.2d 555, 564, aff’d in Dart

(1985),

 107 Ill.2d 33,

 481 N.E.2d 664, the appellate court found

that although citizens before a local decision-maker are not

 entitled to a fair hearing by constitutional guarantees of due

process, procedures at the local level must comport with due

process standards of fundamental fairness.

 The court held that

standards of adjudicative due process must be applied.

 (See also

Industrial Fuels,

 227 Ill.App.3d 533,

 592 N.E.2d 148; Tate v.

Macon County Board,

 188 Ill.App.3d 994, 544 N.E.2d 1176.)

Due

process requirements are determined by balancing the weight of

the individual’s interest against society’s interest in effective

and efficient governmental operation.

 (Waste Manaaement of

Illinois Inc.

 v. IPC8 (2d Dist.

 1989),

 175 Ill.App.3d 1023, 530

N.E.2d 682.)

 The manner in which the hearing is conducted, the

opportunity to be beard, the existence of ex Darte contacts,

prejudgment of adjudicative facts, and the introduction of

evidence are important, but not rigid, elements in assessing

fundamental fairness.

 (Hediger

D

 & L Landfill. Inc.

 (December

20,

 1990), Pea 90—163,

 117 PCB 117.)

In addition, the siting process is governed by Section 39.2

the

Act.

Section

 39.2(a) provides that local authorities are

 consider as many as nine criteria when reviewing an

application

for

siting

approval.

These

statutory

criteria

are

the

only

issues

which

can

considered

when

ruling

application

for

siting

approval.

Only

the

local

body

finds

4

that all applicable criteria have

been

met by the applicant can

siting approval be granted.

 Havana found that Southwest met its

burden on all the criteria.

 (C000056—0077.)

 CCBE challenges

Havana’s findings on all the criteria.

When reviewing a local decision on the criteria, this Board

must determine whether the local decision is against the manifest

weight of the evidence.

 (McLean County Disposal v. County of

McLean

(4th

Diet. 1991),

 207 I11.App.3d 352, 566 N.E.2d 26

McLean

County.)

ISSUES

CCBE challenges siting approval of the incinerator by Havana

the

grounds

that

the

proceedings

were

fundamentally

unfair

well as challenging Havana’s findings on all nine of the

statutory criteria.

 Specifically, CCBE asserts that

the

proceedings were fundamentally unfair because:

1.

 Several members of the city council engaged

 in improper

ex

parte

contacts

with

the

applicant and prejudged the siting

controversy

 (Pet. Br

•

 at 5);

2.

 The hearing officer at the local siting

hearing engaged in improper ex parte contacts

with the applicant

 (Pet. Br. at 10);

3.

 The local officials were incompetent to judge

the merits of the application

 (Pet.

 Br. at

11); and

4.

 The application was too vague to make the

public fully aware of the nature of the

proposal and to permit opponents to respond

(Pet.

Br.

13.).

CCBE also challenges as fundamentally unfair the failure of

Mr. John Kirby, president of Southwest, to testify at the hearing

before the Board.

 However, this challenge is properly one of due

process before the Board and not of fundamental fairness before

the decisionmaker.2

 The Board will examine this challenge in

that light.

DISCUSSION

2The Board has previously distinguished between fundamental

fairness of the siting proceeding and due process before the

Board.

 (~.gi, Turlek.

 et al v. Village of Summit and West

Suburban Recycling and Ener~vCenter, PCB 94-19, 94-21 and 94—22

consl. May 5,

 1994.

5

The decision by a local government body as to whether to

site a regional pollution control facility is an adjudicatory

proceeding.

 (E & E Haulina, at 566.)

 In a landfill siting

adjudicatory proceeding, the decisionmaker must resolve disputed

facts and determine that the nine statutory criteria have been

met.

 (Id.)

 The decisionmaker must be impartial and decide the

issues based on the record before it.

Ex

 parte contacts or other

action which could unfairly influence the decisionmaker are

improper in an adjudicatory proceeding.

 This differs from the

legislative function that the governing body generally undertakes

where decisions tend to be of a policy-making type.

Ex Parte Contacts by Council

The petitioners allege that cx parte contacts between the

applicant and members of the Havana council have prejudiced the

petitioners.

 The alleged contacts occurred during a luncheon

meeting with

the

president of Energy Answers and a trip sponsored

by Southwest to observe an incinerator in Massachusetts operated

by

Energy

Answers.

 Southwest maintains that the contacts were

incidental and did not affect the outcome of the decision by

Havana.

 As discussed below, based on the record in this

proceeding the Board finds that the cx parte contacts tainted the

process and rendered the proceedings fundamentally unfair.

The petitioners assert that

cx

 parte contacts occurred on

several occasions between the mayor and at least five of the

councilmen.

 (Pet.

 Br. at 9.)

 The petitioners argue:

Here a majority of the council members

—

all

those who ultimately voted in favor of the

incinerator

 accepted gratuities from the

applicant and engaged in extensive

cx

 parte

contacts before the initial public hearing on

the application.

 The communications almost

certainly influenced the ultimate decision.

Petitioners are prejudiced because the

content of the communications were

unknown

to

them,

 and they therefore had no opportunity

to respond.

 (Pet.

 Br. at 9.)

The petitioners presented testimony indicating that a

luncheon meeting with Patrick Mahoney, president of Energy

Answers, was attended by five councilmen, the mayor and

approximately 75 persons on September 16,

 1993.

 (Pr. at 24.)

The petitioners assert that luncheon was by invitation only and

that incinerator Opponents and other citizens were—barred from

the luncheon.

 (Pet.

 Br. at 7; Tr. at 24, 267.)

The petitioners also presented testimony by the mayor and

several of the councilmen regarding a trip taken by those

councilmen and the mayor to visit the Seniass plant in

6

Massachusetts.

The

trip

took

place

during

pendency

the

application, two weeks before the siting hearing, and was

allegedly paid for by Mr. Kirby, who also went on the trip.

(Pet.

 Br. at 8; Pr. at 237—239)

 While on the trip the group

toured the Semass plant which is the model for the proposed

incinerator in Havana (C000132—0135, C000143) and visited with

employees of the facility.

 (Pr. at 76.)

According to the testimony given by the councilmen,

the

trip

was not paid for by them.

 (Pr. at 100.)

 The councilmen stayed

motel

for

either

“two

 three”

nights and did

not

pay

for

their

room

charges.

(Pr.

103.)

The

trip

began

Friday

night when the group flew to Providence, Rhode Island and were

shuttled to their motel.

 (Tr. at 103.)

 Dinner was provided

Friday night.

 (Pr. at 106.)

 Saturday morning was spent taking

four

five

hour

tour

the

Semass

plant.

(Pr.

133.)

Lunch was served at the plant

 (Pr. at 139.)

 Saturday evening

dinner

was

again

provided

for

the

councilmen

with

Mr.

Kirby

and

several

employees

Energy

 Answers present.

 (Pr. at 140.)

Sunday several of the council

members

went site—seeing, including

a visit to Plymouth Rock (Pr. at 114) and a pet cemetery.

 (Pr.

at 115.)

 The council

members

agreed that the food was excellent

(Pr. at 106)

 and one councilman said “I had a lot of things to

eat.

...

 I just loaded up.”

 (Pr. at 141.)

Southwest argues that while contacts did occur on the trip

the “contacts did not affect or influence the ultimate siting

decision nor did they cause prejudice to siting opponents”.

(Res. Br. at 18.)

 Southwest argues that the contacts were

minimal

during

the

 trip and that the trip “was a general

informational tour for interested Havana residents such as area

business persons and the local newspaper publisher”.

 (Res. Br.

at 19.)

 Southwest admits that it sponsored the

tour

 and provided

tour

participants

with

“accommodations,

meals

and

transportation”.

 (Res.

 Br. at 18—20.)

Southwest also argues that the generic information provided

on the tour of the Semass plant was “much less rigorous and

technical”

 (Res.

 Br. at 20) than the information provided at

the

public hearing on the application.

 Further, Southwest asserts

that there was no attempt to discuss adjudicative facts or

influence the councilmen.

 (Id.)

 Southwest points out that each

of the councilmen testified at hearing that he

based

his decision

on the record of the siting procedure.

 (Pr.

 at 79, 116,

 120,

150,

174,

175.)

Southwest

cites

several

cases

support

the

proposition

that

reviewing

court

will

not

reverse

local

siting decision because of ex parte contacts without a showing of

prejudice or a showing that the proceeding was “irrevocably

tainted”.

 (F.A.C.T.

PCB,

 555 N.E 2d 1178,

 (3rd Dist.

 (1990);

DiMaaaio V. Solid Waste Aaencv of Northern Cook County, PCB 89-

178,

PCB

—,

 (January 11,

 1990), Waste

Management,

530

N.E.2d

697—698;

Hauling,

451

N.E.2d

555,

 571.)

The

Board

first

notes

that

party

can,

inaction

the

proceeding

before

the

local

siting

board,

waive

 its right to

raise the issue on appeal to the Board.

 (Fairview

Area

Citizens

Task Force

v.

 IPCB,

 (3rd Dist. 1990)

 144 Ill. Dec. 659,

555

N.E.2d 1178.)

 However,

 in this proceeding, the petitioners did

tile a motion to disqualify Mayor McNeil, Ed Ray, Bill Schmidt

and Leonard Thomas with the hearing officer at the siting

hearing.

 (C001086 and C000109.)

 Thus, the petitioners have

preserved their right to raise this issue on appeal.

The

Board finds that the trip to the

Semass

plant sponsored

by the applicant was improper in this case.

 Southwest

consistently referred to the Semass plant as the

model

for the

Havana proposed incinerator.

 (C000129, C000132.)

 Southwest

presented extensive testimony at the public hearing on the siting

 regarding the operation of the Semass plant to bolster the

application.

 (C000134-0l43.)

 Further, Southwest presented into

evidence several drawings depicting the Semass operations

(C001132-1135) and letters from Massachusetts officials

commending the operation of Semass.

 (C001138-1150.)

 Thus,

 it is

clear that the applicant relied extensively on the Semass

operations as a

model

for the Havana site.

Although the testimony before the Board indicates that the

entire council was invited to tour the Semass plant

 (Pr.

 at 75,

175 and 236),

 there is no indication that the general public was

invited on the tour.

 Therefore, the Board finds that the

applicants’ sponsorship of and payment for a tour of a facility

used as the model for the proposed facility which included the

council but not the public generally led to a fundamentally

unfair proceeding.

 The petitioners were prejudiced.

 Petitioners

were without benefit of seeing the model site and thus were

unable to appropriately address all the impressions formed by the

councilmen who toured Semass to view the

model

site used as a

reference in these proceedings.

preludament by Council

The petitioners next assert that the councilmen and the

mayor showed a predisposition to the incinerator by their actions

in regard to the referendum and the annexation.

 (Pet. Br. at 6—

7.)

 Specifically, petitioners point to a letter from the Mayor

on city stationary which was mailed to the citizens of Havana

urging

support

 the incinerator in the referendum.

 (Pet.

Br.

at 6; Pet. Exh.

6.)

 The petitioners assert that the letters were

sent in envelopes belonging to Southwest.

 (Id.)

 The petitioners

also allege that some of the councilmen placed yard signs in

support of the incinerator in their yards prior to the

referendum.

 (Pet.

Br.

 at 6;

 Tr. at 144.)

 The petitioners also

8

presented testimony indicating that Councilman Schmidt confronted

an opponent to the landfill during the annexation hearing and

became

verbally and physically abusive.

 (Pet.

 Br. at 7; Pr. at

208-210.)

 Testimony was also presented that the mayor had become

verbally abusive to some of the opponents of the incinerator.

(Id.)

The petitioners argue that the mayor’s actions at the

council meeting where the siting vote was taken also

 showed bias.

(Pet. Br

•

 at 8.)

 Petitioners assert that

the

proponents were

allowed to

make

excessive noise

and

show approval or disapproval

 of council action.

 However, opponents were “yelled at” by the

mayor for quietly talking among themselves.

 (Pet. Br. at 8-9;

Pr. at 247—249.)

Southwest points out that local officials are presumed to be

objective and the presumption is not overcome by the mere fact

that an official has taken a public position or expressed a

strong view on a siting proposal.

 (Res.

 Br. at 15 citing E & E

Haulina v.

PCB,

 481 N.E.2d 664, 668 (Ill 1985); Waste Manaaement

of Illinois v.

PCB,

530

 N.E.2d 682,695—696

 (2nd Diet 1988);

Citizens for a Better Environment v.

 PCB, 504 N.E.2d 166, 171

(let Diet. 1987).

 Southwest further cites to Section 39.2(d) of

the Act which specifically allows participation in the decision

by

a

member

the

county board even if

that

 member has expressed

an opinion publicly.

 (Res.

 Br. at 15.)

Southwest argues that, given this legal framework,

the

allegations made by CCBE are not sufficient to overturn Havana’s

siting decision.

 (Res.

 Br. at 16.)

 According to Southwest, the

mayor did not vote on the siting issue

 (Res.

 Br. at 16; C000078-

0081) and the expressions of support by two council members eight

months prior to voting on the projects “do not demonstrate the

 kind of bias or predisposition necessary to nullify a siting

determination”.

 (Res.

 Br. at 16—17; Pr. at 144—145.)

Southwest has properly cited some of the extensive case law

regarding alleged predisposition of the decisionmaker.

 (Res.

Br.

at 15.)

 Although the record indicates that members of the

council made statements indicating a bias such statements are not

sufficient to disqualify a decisionmaker.

 All of the councilmen

testified that their decision was based on the record developed

at hearing and on the application.

 Therefore, the Board finds

that the councilmen were properly allowed to participate in

the

siting process and any predisposition did not result in a

fundamentally unfair proceeding.

The Board is, however, dismayed at the actions of the Mayor.

When presiding over the actual council meeting where the siting

vote occurred, the mayor clearly showed bias.

 Further, the

drafting of a letter by the mayor supporting the incinerator on

Havana stationary mailed by Southwest is a disturbing indication

9

of bias.

 In the event of a tie vote by the council, the mayor

would

 be required to vote.

 However, the Board need not rule

the

mayor’s

actions

did

not

vote

this

siting

application; however, such actions are not condoned.

Alleged Errors at Hearing

Lastly, the petitioners point to two specific alleged errors

which

occurred

the

actual

siting

hearing.

(Pet.

Br.

8.)

The

petitioners

allege

that

the

morning

the

hearing,

the

applicant,

the

hearing

officer

and

the

city

council

were

allowed

to enter the building early.

 (Id.)

 The petitioners were

allegedly

not

allowed

 until five minutes before the hearing

began.

 (Id.)

 Further, the petitioners presented testimony that

the “majority of the city council slept, read the newspaper, went

out

for

coffee

and

doughnuts,

went

out

for

smoke.

did

not

appear

that

they

needed

any

information

make

decision.

 It appeared to me they had made a decision.”

 (Pr.

at

 263—264.)

The

Board finds that the failure to admit

the

general

public

into the hearing room until five minutes before the hearing is

not

fundamentally

unfair.

 The record gives no indication

that

the failure to open

the

doors earlier prejudiced

the

petitioners.

Further, at the public bearing, the applicant’s attorney

explained that the applicant had entered early to set up

equipment which would be available for anyone to use.

 (C000lll.)

The case law is well settled that council

members

need not

attend the hearings.

 The appellate courts have affirmed the

Board in finding that it is acceptable for the decisionmaker to

rely

 transcripts of the public hearing in rendering its

decision.

 (City of Rockford v. County of Winnebago,

 542 N.E.2d

423

 (Ill App. 2d Diet.

 1989);

 Waste Management of Illinois v.

Pollution Control Board

 (1984) 123 Ill. App.3d 1075, 79 Ill.Dec.

415,

 463 N.E.2d 969

 (“As long as the entire record was available

for review by the full county board all members heard the case

irrespective of their attendance.”)

 We therefore find that the

failure of Havana council members to attend the entire hearing

did not render the proceedings fundamentally unfair.

Relationship Between the Hearing Officer, the City. and the

ADD1icant

The petitioners assert that Hearing Officer Zeman indicated

a level of bias in favor of the applicant which should disqualify

her.

 (Pet.

 Br. at 11.)

 They base their arguments on several

aspects of the relationship between John Kirby and Ms.

Zeman

throughout the application and bearing process.

 Southwest argues

that the contacts between Ms.

 Zeman and John Kirby were

procedural in nature and that petitioner could produce no

evidence of bias in Ms. Zeman’s actions.

The Board has previously addressed the issue of hearing

officer bias in a landfill siting appeal case.

 In Citizens

Against Regional Landfill v. Whiteside County and Waste

Management of Illinois

 (CARL), 139 PCB 523, PCB 92-156,

 (February

25,

 1993), the Board held that the same standard of determining

bias can be applied to a hearing officer as applies to the

decisjoruriaker.

 (139 PCB 535.)

 Using the standard as enunciated

E~&E Hauling, the Board determined that the hearing officer

may be disqualified for bias or prejudice if a “disinterested

observer might conclude that he had in some measure adjudged the

facts as well as the law of the case in advance of hearing”.

(Id.; E

 & E Hauling at 451 N.E.2d 565—566.)

 The Third District

Appellate Court,

 in its analysis of the issue of hearing officer

bias and conflict of interest noted that the hearing officer in

the CARL case was “ultimately under the control and direction of

the State’s Attorney who is an elected official responsible to

the community and subject to public disapproval

•

.“.

 (Carl,

slip op. at 7.)

 Moreover, the court also found that, since the

hearing officer was not

the decisionmaker, the same standard of

fundamental fairness does not apply to the hearing officer.

(Id.)

Petitioners assert that several aspects of the relationship

between Hearing Officer Zeman and Mr. Kirby should lead to a

finding of fundamental unfairness.

 (Pet.

 Br. at 11.)

The

petitioners maintain that Mr. Kirby had the power to approve or

disapprove the hiring of the hearing officer, exercised editorial

control over documents prepared for Havana City Council’s

consideration, and may have been the client.

 (Id.)

The

petitioners support this assertion by pointing to the fee

agreement signed by Havana, Mr. Kirby and Ms.

 Zeman, which

allegedly gives Mr. Kirby the right to terminate the hearing

officer.

 (Pet.

 Exh.

 1 at 3; Pr. at 39.)

 A copy of the agreement

was sent to Mr. Kirby and obligated Mr. Kirby to pay Ms. Zeman

directly for bills submitted directly to him by Ms.

 Zeman.

 (Pr.

at 45-46)

 Further, the hearing officer forwarded a copy of the

draft ordinance prepared for this siting procedure to Mr. Kirby

and accepted changes from him.

 (Pet.

 Br. at 10; Pet. Exh.

 3 and

5 at 1-2; Tr.

 at 46.)

Southwest argues that the contacts between the hearing

officer and Mr. Kirby were procedural in nature and that the

hearing officer testified that the limited contact with Southwest

and the Havana City Council did not “influence how she conducted

the hearing or prepared her post—hearing recommendations to the

city”.

 (Res.

Br.

 at 13.)

 Southwest also argues that the record

demonstrates that the hearing officer conducted the proceeding in

“an unquestionably even-handed manner that enabled all parties to

participate effectively”.

 (Res.

 Br. at 14.)

11

Hearing Officer Zeman testified that the fee agreement was

arranged between her

firm

and Mr. Kirby and a clause was

specifically

added

 Mr. Kirby’s request “so that if the

——

I

was going to be terminated either at my will or the city’s or his

(Mr.

Kirby,

that

enough

time

given

that

the

transition

the

hearing process would be a smooth one instead of an

abrupt

one”.

 (Pr. at 39.)

 When asked directly if Mr. Kirby retained

for himself the right to terminate her, Ms.

 Zeman stated:

 “That

was in the

standard

contract,

and

believe

was

in the

ultimate one that was sent to him.”

 (Id.)

 In fact the executed

fee agreement was signed by Mr. Kirby, the Mayor and the

bearing

officer.

 The fee agreement refers to Havana as

the client and

Southwest as the applicant.

 (Pet.

 Exh.

1.)

 When asked about the

contact between the hearing officer, Havana and Mr. Kirby, Ms.

Zeman stated that the contacts were mainly in writing.

 (Pr.at

37)

The

contacts

did

include

sending

the

 draft ordinance to Mr.

Kirby and receiving it back with Mr. Kirby’s comments.

 (Pr. at

45,

46.)

The

contact

did

not

include

providing

Mr.

Kirby

with

draft of the findings the hearing officer prepared for Havana.

(Pr.

 42.)

 Finally, Ms.

 Zeman read into the record a letter

from

Ms.

Zeman

 Mr. Kirby; that letter was also admitted as an

exhibit.

(Pr.

48;

Pet.

Exh.

4)

 In pertinent

part,

the

letter

states:

“Mayor

 McNeil has indicated you were satisfied with my

services and certainly Southwest is the primary beneficiary

the services I rendered.”

 (Pet. Exh.

4.)

The Board first notes that the petitioners have not

specifically listed areas of alleged bias.

 After examining the

record in this case, the Board finds that the hearing officer did

not exhibit bias.

 However

the Board does not believe that the

decisive issue in this case is whether or not the hearing officer

was biased.

 Accordingly the test as enunciated in CARL and E & E

Haulina does not apply in this case.

 Rather, the issue is

whether the extensive contacts and the relationship between the

hearing officer and the applicant contributed to fundamentally

unfair procedures.

 Although the petitioners have not

specifically listed areas of alleged bias,

the Board does find

that under the circumstances of this case, the relationship

between the hearing officer, the city and the applicant created

inherent bias.

The Board can find no statutory basis for the fee agreement

 between Mr. Kirby and Hearing Officer Zeman.

 Section 39.2(k) of

the act states:

A county board or governing

body of a municipality may

charge applicants for review under this section a

reasonable fee to cover the reasonable and necessary

costs incurred by such county or municipality in the

siting review process.

The plain language of this section, when applied to the instant

case, specifies that the Havana City Council could charge

Southwest a reasonable fee to cover expenses

 generated

 by the

application approval process.

 As Hearing Officer,

Ms.

 Zeman

should have been contracted by the City Council to perform her

duties, and should have been paid by Havana.

 Adhering to the

express language of Section 39.2(k) would remove the bias

inherent in a situation where the applicant participates in

hiring, remunerating, or possibly, terminating the Hearing

Officer.

The law is well settled that the siting process is governed

by the standards of adjudicatory due process and fundamental

fairness.

(E

 & E Hauling, at 566.)

 Even

though bias was not

shown, the Board believes that the relationship between the

hearing officer and the applicant which was fostered by. the city

has contributed to the fundamental unfairness of the process.

The

hearing

officer

was

interviewed

for

 the position by a

representative

the

city

and

the

applicant.

The

hearing

officer testified that the initial meeting to discuss her

employment was attended by the Mayor

and

John Kirby.

 (Pr.

at

34.)

 PIs. Zeman further testified that the luncheon “was

primarily to see whether I had familiarity with 39.2

and

with the

process in general” and both the Mayor and Mr. Kirby participated

in the discussion.

 (Pr. at 35.)

 The fee agreement executed was

signed by Ms.

 Zeman, Mayor McNeil and Mr. Kirby.

 The fee

agreement specified that Ms. Zeman would submit bills directly to

the applicant and be paid directly by the applicant.

 The hearing

officer viewed Southwest as

the

primary beneficiary of her

services.

 The applicant was allowed to review and comment on the

ordinance prior to the ordinance being made public.

 Finally, the

hearing officer drafted the finding of facts and conclusions of

law ultimately adopted by the Havana council.

The

contacts between Mr. Kirby and Ms.

 Zeman show a

continued disregard on the part of the applicant and the City of

Havana for adjudicatory due process.

 The mayor brought Mr. Kirby

 to the initial discussions regarding Ms. Zeman’s employment and

allowed Mr. Kirby to participate in determining us. Zeman’s

qualifications.

 The mayor signed an agreement which required Mr.

Kirby to directly pay Ms. Zeman and granted Mr. Kirby the right

to terminate Ms. Zeman.

 Havana allowed Mr. Kirby to review the

siting ordinance, which set forth the procedures to be followed

throughout the process.

 Thus, Havana allowed Mr. Kirby control

over the hearing officer and the actions of the hearing officer

which were clearly outside of adjudicatory due process.

 This

contributed to the fundamental unfairness of the proceedings.

Technical Expertise of Public Officials

The

petitioners

assert

that

the

 city council lacked the

technical expertise to review the siting application and thus,

rendered the proceedings fundamentally unfair.

 (Pet.

 Br. at 11.)

The petitioners cite to testimony by the council members which

indicated a lack of technical qualifications.

 (Id.)

The

petitioners also argues that the alleged reliance the council

members placed on the operation of the Semass plant was misplaced

they

did

not

discuss

compliance

history

the

operating

history

the

facility.

(Pet.

Br.

11-12.)

The Board finds this argument without merit.

 The Act

specifically requires local siting decisions to be made by the

governing

body

of the municipality.

 The Act does not require

that the governing body have technical expertise.

 Rather, the

Act

requires

the

decision

 based on the application and the

record developed during the process.

 Therefore,

 the lack of

technical expertise does not render this proceeding fundamentally

unfair.

Application as Filed

The petitioners assert that the application as filed fails

to give enough detail to put the public on notice as to the

“precise nature of the facility and operation”.

 (Pet. Br. at

13.)

 The petitioners argue that the application “presents no

site plan or design, promising instead that these ‘technical

details’ will be made available to the permitting agency”.

 (Id.)

The petitioners charge that an application which is “so

completely devoid of details regarding location, design and

operation

insufficient

matter

 law”.

 (Id.)

The

petitioners further asserts that the deficiencies were not cured

at bearing.

 (Pet.

 Br. at 14.)

Southwest argues that the application describes the nature

of the proposed facility and the general operations and

safeguards,

thus,

clearly

communicating

the

substance

Southwest’s

proposal.

(Res.

Br.

12.)

Southwest

also

argues

that its application was sufficient when considering the “overall

process of gaining local siting approval”, which includes a

public hearing and post-hearing comment period.

 (Id.)

 Southwest

asserts that the Board “confirms that an application need not

contain all material

necessary for a local governing

body to make

a siting determinations”.

 (Id.)

 Southwest cites to Tate

y.

Macon County Board

 (188 Ill.App.3d 994, 544 N.E.2d 1176 (PCB 88—

126))

support

this

position.

 (Id.)

Southwest is correct that the Board has held that the

application need not contain all material necessary for the local

governing board to make its decision.

 In Tate, the Board

specifically stated that:

 “an abbreviated siting application

(one without technical supporting documents)

 is acceptable where,

as here, such materials were available prior to the close of the

hearing

process”.

(Tate

PCB

79.)

 Town

St.

 Charl~

Kane

County

Board

and

Elgjn

Sanitary

District

(PCB

83—228,

14

229,

 230, 57 PCB 203

 (March 21,

 1984), vacated on other

grounds

sub. nom. Kane County Defenders v.

PCB

~t p1., 129 Ill. App. 3d

121,

 472 N.E.2d 150

 (3rd Dist. 1984)), the Board upheld a

•jting

application which was only two pages in length when filed.

In each of the above cited

cases,

 additional data was filed

either at hearing, or prior to hearing, which supported the

initial application.

 Southwest presented testimony at the siting

hearing

and

additional

documentation

support

the

application.

 Therefore, the Board finds that the application as

filed and later supplemented at the siting hearing was sufficient

and did not render the proceeding fundamentally unfair.

Due

Process

Before

the

Board

Petitioners argue that their inability to question Mr. Kirby

 the at the Board hearing deprived

them

of due process.

Petitioners maintain that the record needs

 more

 details with

regards to Mr. Kirby’s corporate interests as well as the

contacts Mr. Kirby had with the decisionmaker in this process.

The Board believes that the record is clear

 to Mr.

Kirby’s

varied

business

interests.

 (for example

see

Pr.

 at 45—

46.)

 Further,

 in response

 a motion to continue filed by

petitioners,

 Southwest filed summaries of testimony by Mr. Kirby

in another proceeding before the Board.

 Southwest

 also indicated

that it did not object to petitioners making use of that

testimony.

Thus,

the

information

filed

Southwest

and

the

testimony of the council members is sufficient to

allow

the

Board

to render a decision on the issues of fundamental fairness.

Therefore,

the

Board

finds

that

petitioners

were

afforded

due

process before the Board.

CONCLUSION

These proceedings were tainted by extensive improper contact

 between the applicant and the decisionmaker.

 The applicant was

allowed an opportunity to review the ordinance governing

the

siting proceeding prior to the ordinance being

made

public.

The

applicant interviewed and maintained a right to terminate the

hearing officer who presided over the siting bearing.

The

applicant sponsored a trip to a facility in Massachusetts by the

Havana City Council.

 At least one luncheon was held where

the

applicant and the decisionmaker attended and the general public

was not allowed.

 The combination of these factors lead the Board

to find that the proceedings before the City of Havana did not

comport with the standards for an adjudicatory proceeding and

hence were fundamentally unfair.

ORDER

15

For the reasons expressed in the above opinion, the City of

Havana’s

December

21,

1993,

decision

the

 application of

Southwest Energy Corporation is hereby

 reversed as

 being

fundamentally

unfair.

This

docket

hereby

 closed.

IT IS SO

ORDERED.

Board

Member

Theodore

Meyer

concurs.

Chairman Claire A. Manning abstains.

Section 41 of the Environmental Protection Act (415 ILCS

5/40.1) provides for the appeal of final Board orders within 35

days

service

 this decision.

 The Rules of the supreme Court

Illinois

establish

filing

requirements.

(But

see

 also,

35

Ill.

Adin.

 Code 101.246,

Motions

for

Reconsideration.)

I, Dorothy H. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above opinion and order was

adopted

the

/9~

day of

__________________,

 1994,

vote

‘~~—O

Dorothy M.

 G)4~&n, Clerk

Illinois Po~1J.ztionControl Board