ILLINOIS POLLUTION CONTROL BOARD

May 25,

1939

McLET~.NCOUNTY DISPOSAL

COMPANY,

 INC.,

Petitioner,

v.

)

 PCB 87—133

THE COUNTY OF McLEP~N,

Respondent.

DISSENTING OPINION

 (by B.

 Forcade):

While

 I agree with much of the majority rationale,

 I must

respectfully dissent

 from the outcome.

 McLean County Disposal

Company,

 Inc.

 (“MCDC”)

 argues the impropriety of county board

members considering

 a tape recording

as

 their

 sole exposure

to

the record.

 But,

 MCDC raises that

 issue

 for the

 first

 time on

appeal

 to this Board.

 I believe

 that MCDC must either:

(1)

~ime1y

 raise

 the issue before the county board where

 such alleged

defect

 in fundamental fairness could

 be corrected,

or

(2)

demonstrate factually

 to this Board why it

 was not possible

to

raise the fundamental fairness

 issue before

 the county board.

Since MCDC has done neither,

 I believe they have waived the

fundamental fairness issue.

The majority adopts the position,

 in today’s opinion,

as

well

 as preceding cases,

 that each county board member must have

had possession

of

or

 access

 to the record.

 In today’s Opinion,

they hold that such record must include

 a typed transcript,

 i.e.,

a decisionmaker cannot acquire his

 or her information from tape

recordings

 or from the advice

 of fellow members who did attend

the hearings.

 assuming that

 these are accurate statements

of

the

applicable

 law,

 I still

 do not believe MCDC would prevail,

because MCDC has waived the right

 to raise

 the issue

 for the

first

 time on appeal.

 The Fourth District Opinion which remanded

this matter

 to the Board was premised

 in large part on the theory

that objections

 not raised below are waived on appeal:

Generally

 speaking,

a

 trial

 court

 must

be

specifically

 informed

of

the

 nature

of

objections.

It

is

 unfair

to

 make

 objections

on appeal

 after

 concealing

the

 real

 nature of

the objections from

the

 lower court.

 (DeMarco

v.

 McGill

 (1948),

402

 Ill.

46,

83

 N.E.

2d

~l3.

)

 The requirement

 that objections must be

specifically asserted before the trier

of

 fact

is

 equally

 applicable

to

 administrative

99—235

—2—

proceedings

 (see

 Leff.er

v.

 Browning

 (1958),

14

 Ill.

2d

 225,

 151 N.E.

2d

 342),

 especially

where the administrative tribunal could easily

have

 remedied

the

 alleged

 defect

in

the

proceedings.

 Meinhardt

 Cartage

Co.

v.

Illinois

 Commerce

 Comm’n

 (1959),

15

 Ill.

2d

546, 155 N.E.

2d

 631.

Citizens Against

 the Randolph Landfill

 (CARL)

The

 Illinois

 Pollution

 Control

 Board,

127

Ill.

 Dec.

 529,

533

 N.E.

2d

401

 (Fourth

 Dist.

Dec.

28,

 1988),

at

 536,

 537.

There can be no doubt

 that all participants below were made

aware

of

 the fact that

 the county board hearings were being tape

recorded.

 The Chairman

 of the McLean County Board announced

the

recording process

 in her opening remarks

 (Tr.

 of June

16,

p.

5)

and later

 admonished one speaker

 to get closer

to

 the microphone

so that

 the recording could be done properly

 (Tr.

 of June

16,

at

p.

 43).

 Also,

 she advised everyone that the tapes would be used

for the purposes

 of review:

Also,

I

 would

 remind

you

 that

we

are

 taping.

That

is

why

we

 are trying

to

 stay

 closer

to

the

 microphones

so

 that

in

any

 event

if

any

committee

 member

 does

 have

 need

of

the

 tapes

to refresh

 their memory they will

 be available

to us.

So,

 thank you all.

 Good night.

(Tr.

 of June

16,

p.

 155.)

When the legal theory articulated

 by the Fourth District

is

applied

 to these

 facts,

 I believe MCDC had a duty

 to object

before

 the county board

 or explain to this Board why such

 objection could

 not have been made.

 Otherwise,

 MCDC’s continued

participation

 in the hearing below waives

 the issue

 on appeal.

~ccordingly,

 I dissent.

On the fundamental legal holding of the majority,

 I am less

certain as

 to what the law requires of county board members

in

considering the evidence.

 In this case,

 the majority of the

county board did not listen to any

 of the testimony or read any

of the transcripts.

 But,

 they certainly discussed

 the case among

themselves,

 i.e., briefing by fellow decisionmakers.

The

question of whether

 this amounts

 to “consideration

 of the

evidence” brings this Board

 into

 the thorny quagmire

of

procedural requirements

 for institutional adjudicatory

ciecisionmaking.

 In the wake

of

 the four U.S.

 Supreme Court

~‘1organcases

 (Morgan

v.

U.s.,

298

 U.S.

468

 (1936)

 Morgan

II;

Morgan

v.

 U.S.’

 304 U.S.

1

 (1938)

 Morgan

 II); Morgan

v.

U.S.

307

 U.S.

183

 (1939)

 Morgan

 III;

 and United States

 v. florg,

313 U.S.

409

 (1941)

 Morgan

 IV),

 a substantial body

 of law has

99—236

—3—

developed.

 That body of law has not yet coalesced around

a

singular holding

 regarding briefings by

 a committee

 of fellow

decisionmakers

 as a substitute for

 an actual review of the

transcript.

 Even “learne.~ treatises” shed murky illumination on

what

 is the prevailing

 Ian.

 See K.

 Davis, Administrative Law

Treatise, Section

 11.03

 11.04

 (1958);

 2 Am. Jur.2d,

Administrative Law,

 Section

439

 (1962,

 and Supplement);

 F. Cooper

State Administrative Law Chapter

 13, Section

3;

 18 A.L.R.

2d

 606—

629 (indiu~T~Later Ca~:Service).

There

 is case law ta support

 the proposition that briefings

by fellow decisionmnakers

is

 an adequate

 “consideration”

 of the

record.

 Seabolt

v.

 Moses

 220 Ark.

 242,

 247 S.W.2d

24

(1952);

Fifth Street Pier Corp..

Hoboken,

126

A.

2d

6

 (1956).

 There

is

also

clearly

case

law

tc~

he

contrary.

 Joyce

v.

 Tiruckmari, 15

N.Y.S.

679

(4th

Dept..

1939).

None

the

relevant

case

law

comes

from

Illinois,

and

cany

the

cases

this

general

issue

involve interpretation

state

statutes

not

applicable

Illinois.

The

problem

the

eninformed

decisionmaker

 (one who has

neither attended the he~:~ngsor

read

the

transcripts)

has

long

history in Anglo—Americae jurisprudence.

 Those individuals

generally

 rely on the advice and information received from those

who did attend the proce~ding,

but

 the information conveyed

is

necessarily

 an abridged version

 of what actually transpired.

A

decisiorimnaker

 whose

 first

 and only involvement

 with the record

is

in this fashion will nev~r have the opportunity

 to fully apply

his experience

 and capahilitie~ in the~interpretation and and

evaluation

 of the complete

 record.

 Any effort which attempts

to

abridge

 a. large body

 of information will

 by definition

 omit some

data

 in the process,

It

 is this culling

 of the record

 for other

decisionmakers which raises the spectre of due process infringe-

ment.

 Since the decisions

 regarding what information

 to include

and what

 to exclude are necessarily made subjectively, there are

no assurances

 that

 those decisionmakers who see and/or hear only

a summarized

 version would have weighed

 the evidence in an

identical manner.

 There

 is substantial

 historical precedent that

uninformed decisionmakers can rely on advice and information from

others,

so

 long

 as that advice

 is subject

 to scrutiny and

rebuttal prior

 to final

 h:Lsposition.

In Mazzav._Cavicchin,

 105 A.

 2d 545

 (1954),

 the Supreme

Court

 of New Jersey revia~ed the status

of

 “reports” which

the

uninformed decisionmaker ieceived from others,

 as that concept

has developed

 in the

 20th century in England

 and the United

States.

 The court stress ad that these reports must be subject

to

public

 review and rebutt~i because,

 “it

 is not merely

 of some

importance

but

is

 of fuad~mental importance

 that justice

 should

not only be done,

 but sheeld manifestly and undoubtedly

be

 seen~

to

 be done.”

Rex

v.

 Suasax Justices,

 1 K.B.

256

 (1924),

See

also,

 Chief Justice Hughaa

 in M6~~KII,

 304 U.S. at page

22.

n

99—23 7

—4—

Fifth Street Pier Corp.

 v. Hoboken,

 126 A.2d

 6 (1956),

 the New

Jersey Supreme Court extended this doctrine

 to include approval

of uninformed decisionmakers who receive their

 information from

the wr~ittenreports of fellow decisionmakers.

 In Seabolt

v.

Moses, 247

 S.W.2c3

24

 (1952),

 the Arkansas Supreme Court extended

the doctrine to include verbal briefings by fellow

decisionmakers.

As

a

 result of the above cited cases,

 I find it difficult

to

support the majority legal holding that c3ecisionmakers must have

possession of or access to a transcribed

 record.

Perhaps another perspective

 is that the law precludes this

Board from evaluating what connection

 the decisionmakers had with

the record.

 In National Nutritional

 Foods Assn.

v.

 Food and Drug

Administration,

 491 F2d 1141

 (2nd Cir.,

 1974),

 the Petitioners

sought to prove

 that it was physically impossible

 for the newly

appointed Commissioner

 to have considered

 the record.

 They

agreed that they could not “probe the mental processes”

 of the

commissioner after Morgan

II,

 but asserted that they could “probe

whether he exercised his own mental processes at all”.

 Supra,

1144.

 After

 citing

 a substantial

 line of precedent,

 the court

refused

 to allow any inquiry of the decisiorimnaker.

In a similar manner here, MCDC asserts that,

 “the question

does not go

to

art

invasion of the fact finder’s thought

processes.

 Rather,

 the question

 is whether there were any

thought processes

 at all.”

 MCDC Brief at

4.

 I believe this

Board should have given MCDC the same answer that the Second

Circuit gave National Nutritional Foods Association,

 by quoting

Morgan

IV:

But

the

 short

of

the

 business

is

 that

the

Secretary should

 never

 have been subjected

to

this examination.

 313 U.S.

at

 422.

Supra,

at

 1144.

For all of the above reasons,

 I must dissent.

 I believe the

Board should have addressed the merits of the controversy rather

than remanding the matter.

 I would note that the question of how

local decisionmakers must address the record

 in landfill siting

cases has been presented

 to the Illinois Appellate

 Courts on

several occasions.

So

 far,

 they have declined

 to answer.

 Until

they do,

 I find the previously described cases most persuasive.

99—238

—5—

I, Dorothy

 M. Gunn,

 Clerk of the Illinois Pollution Control

Board,

 hereby certify that the above D~sentingOpinion was

submitted

 on the

 day of ________________________,

 1989.

c~~/

 ,_~__~j

Dorothy

M.Munn,

Clerk

Illinois Pollution Control Board

99—239