ILLINOIS POLLUTION CONTROL BOARD
September 2, 1982
VILLAGE OF HANOVER PARK,
)
)
Petitioner,
)
v.
)
PCB 82—69
)
COUNTY BOARD OF DuPAGE,
)
DUPAGE COUNTY FOREST PRESERVE
COMMISSION,
)
AND E & E HAULING, INC.,
)
Respondents.
JOSEPH
V.
KARAGANIS, RUSSELL
R.
EGGERT AND DAVID G. LICHTE~STE1N
(O’CONNOR, EARAGANIS AND GAIL, LTD
4
APPEARED ON BEHALF OF
PETITIONER;
BYRON L.
FAERMARK, GEORGE SOTOS AND JOHN DAVIDOVIC1,
ASSISTANT
STATE’S ATTORNEYS, APPEARED ON BEHALF OF THE DuPAGE COUNTY BOARD;
RICHARD A. MAKARSKI
(CHAPMAN
AND CUTLER) APPEARED ON BEHALF OF
THE DUPAGE COUNTY FOREST PRESERVE DISTRICT; AND
THOMAS W. McNAMARA
AND
RUSSELL J.
HOOVER (JENNER AND BLOCK)
APPEARED ON BEHALF OF S
& S HAULING,
INC.
OPINION OF THE BOARD (by J. Anderson):
This Opinion supports the Board’s Order of August 30, 1982.
This matter comes before the Board on the June 1,
1982
petition filed by the Village of Hannover Park (Village) for
review of the April
27, 1982 decision of the County Board of
DuPage
(County) granting site location approval for the expansion
of the existing Mallard Lake Landfill located in unincorporated
DuPage County to applicants DuPage County Forest Preserve District
(District) and S
&
S Hauling,
Inc.
The County’s decision was made
and this third party appeal was taken, pursuant to SB 172,
P.A.
1
82-682 as it has amended the Environmental Protection Act (Act).
As this action was the first such Section 40.1(b) third party
appeal, on June 10,
1982 the Board on its own motion addressed
three procedural issues.~
In its Order, the Board
1) dismissed as
improperly joined respondents
the
23 individuals who, collectively,
comprise the Board and the District,
2) directed that the Clerk
of the County Board prepare,
file and certify the County’s record,
‘References to SB 172 as codified will reflect the renumbering
of the Act as accomplished in the Revisory Act of 1982
(P.A.
82—783).
2
and 3)
construed the 90 day decision deadline of Section 40.1(b)
as giving respondents the right to receive (and therefore waive)
a decision within that time period.
Hearings were held by the Board on August
2,
1982 in the
Municipal Complex, Hanover Park, and on August 16,
1982 in the
DuPage Center, Whea~on,at which members of the public and the
press were present.
Prior to hearing, pursuant to motion, by
Order of July 21,
1982 the Board had outlined its understanding
of the scope of evidence discoverable and admissible in this case
in furtherance of its Section 40.1(a)
fundamental fairness review.
The Board
found that 1)
the motives of County Board members
in
reaching their decision were not a proper subject of Board review,
2) that interrogatories concerning “ex parte” contacts were
improper, and 3) that questions concerning hearing attendance were
permissible but transcript reading were not.
In addition the
Board had found that the failure of the County and the District
either to make timely objection,
or to respond,
to discovery
requests constituted a pro tanto waiver of the 90—day time period.
Pursuant to the briefing schedule established at hearing,
the Village filed its final brief on August 20.
Respondents
briefs were due August 25;
5 &
S filed its brief late that day,
while the County and District each filed its brief August 26.
The Village filed a reply brief on August 26, requesting leave to
do so.
The Board will accept all briefs filed by all parties in
the interest of fully informed adjudication.
In their briefs, the parties have asked for review of certain
evidentiary rulings of the hearing officer, in addition to arguing
the merits of the case,
The
Village also filed separate motions
“for reversal and remandment” on the grounds that a)
“no county
board hearing was afforded”,
(August 20) and b)
“an incomplete
record was certified” to the Board (August 26), which matters were
addressed by respondents in the briefs.
Both are denied as un-
timely;
their merits are discussed in the course of this Opinion.1
The Village argues,
in sum, that the procedures employed by the
County in reaching its decision were fundamentally unfair, and
that its substantive decision was contrary to the County’s own
findings of fact and the evidence it received.
THE ACT, SB_172, AND
THE MECHANICS OF THE DECISIONMAKING PROCESS
As a preface to consideration of the parties various
arguments,
it is essential to establish the context in which
they must be received.
2A11 parties have waived any error arising from the
inadvertent siting of the Hanover Park hearing at a Cook County
location, rather than at a DuPage County location as required by
Section 40.1(b)
(R. 30—31).
48-96
3
SB 172 was specifically enacted to revise the permitting
system established under the Act,
as interpreted by the courts.
Legislative history indicates that Carison v. Worth and subsequent
cases interpreting the effects of the Act in relation to the
powers of home rule as well as non-home rule units of local
government were intentionally nullified.
However,
the local
siting approval process which was grafted into the Act must,
in
the absence of indication of contrary legislative intent, be inter-
preted as intentionally embodying the unique, and often hybrid,
nature of the permitting process previously contained in the Act.
The specific decisionmaking strictures placed on a county
board are few:
1.
“At least one public hearing is to be held by the county
board” after publication of notice of same
S39.2(d)
2.
“The public hearing shall develop a record sufficient
to form the basis of appeal of the decision” to the Board
S39.2(d)
3.
Written comments “concerning the appropriateness of the
proposed site” postmarked not later than 30 days of the County’s
receipt of a siting approval application, are to be considered
by the county “in making its final determination”
1S39.2(c))
4.
The
county board “shall approve” site location
suitability only in accordance with 6 stated criteria
(see infra,
p.
10, 11)
ES39.2(a).
5.
Written decisions must be made,
“specifying the reasons
for the decision” on the six criteria
S39. 2(e)).
6.
“Reasonable and necessary” conditions to approval may
be made
S39.2(e).
7.
The decision must be made within 120 days of the
application, to avoid issuance of approval by operation of law
ES39.2(e))
The limits placed on the Board’s power to review siting
approval decisions are also few:
1.
It may accept cases
filed within 35 days of the county
decision from
“a third party other than the applicant who
participated in the public hearing” held by the county board
S40.1(b)
2.
A hearing shall
be held after notice is given
540.1(b),
which is to be “based exclusively on the record before the county
board”
S40.1(b),
and is to adduce “no new or additional evidence
in support of or in opposition to” the county board’s order
S40.1(a)1
48-97
4
3.
The Board’s decision is to include
in its consideration
a)
the county board’s “written decision and reasons” therefor,
b)
the transcribed record of the county board’s public hearing,
and
c)
“the fundamental fairness of the procedures used by the county
board...in reaching its decision”
540.1(b),
and
4.
The decision must be made within 90 days, or the site
location may be deemed approved
540,1(a),
also see Order of
June 10, 1982.
The
intent of SB 172 was to divide between local governmenb
and the Agency decisonmaking authority formerly held by the Agency
alone
(see Waste Management of Ill.
v. Board of Supervisors_~
Tazewell County,
PCB 82—55,
August 5, 1982 at 10).
To the extent
that SB 172 fails to spell out in detail the nature of the pro-
ceeding at the county level,
the Board must “fill in the blanks”
by resort to determinations it has made concerning the nature of
proceedings before the Agency, where SB 172 does not dictate a
contrary result.
In County of LaSalle, et al,
V.
IEPA et al., PCB 81—10,
March 4, 1982
appeal
pending sub. nom. County of LaSalle ex rel.,
George L. Peterlin et al.
v. IPCB et al., Nos.
82—180,
190
(Consolidated),
4th Dist.,
a pre—SB 172 appeal challenging the
grant of a hazardous waste permit decision,
the Board discussed
the nature of the proceeding before the Agency at some length.
While this discussion was
in the context of the applicability of
the Administrative Procedures Act (APA), IlL
Rev.
Stat.
Ch.
127,
§1001 to permitting hearings and procedures before the Agency,*
the policy considerations apply equally here.
Section 39(c) of the Act had
(prior to the Revisory Act of
1982) provided that the Agency was to conduct “a public hearing”
prior to issuance of a permit for a hazardous landfill,
The
Board determined that the
“public hearing” was informational and
participatory rather than adjudicatory in nature, because,
inter alia,
1.
There are no “parties”,
only participants,
at such a
hearing, since “it is impossible to align the participants prior
to an Agency decision
in that the Agency does not take a position
in conformity with or adverse to the permit applicant prior to
reaching a decision”
(Id.,
p..
5);
2.
The drafters of the Act have distinguished in reference
to Board hearings between “public hearings” held in the regulatory
context
(528),
and the “hearings” held in the adjudicatory context
(531(b),
37(a),
40(a))
(Id.,
p,
6).
*
The APA,
in §1003.01 specifically excludes from the
definition of “Agency”,
“units of local governments and their
officers”,
48-98
5
This analysis i~equally valid here in that Section 39.2(d)
orders the county to hold a “public hearing”,
Section 40.1(b),
which affords the right of appeal of a siting approval,
refers
to “a third party other than the applicant who p~ticipatedin
the public hearing”
(emphasis added),
The Board also addressed the meaning of the review “based
exclusively on the record” language of what was then Section 40(b).
Concerning the nature of the record itself, the Board found that
post—hearing evidence could be relied on by the Agency,
since to
“cut off communications with the applicant at any time
prior
to
the closing of the record might well result in the inability of
the Agency to reach a fully informed decision”.
However, the
Board found that if such contacts are relied on, that they should
be made part of the record,
to protect due process rights in the
event of a later appeal
(Id.,
p..
8—9).
The Board found that its review of the record would be
meaningless
“if the Agency has complete control of what constitutes
the record.
The Agency could pre—decide most any permit
action, place only those materials
in the record which
support that decision,
and then rely on the record,
as
presented, to support that decision,”
The Board accordingly found that the petitioner had a “right to
establish at the Board hearing that the record,
as submitted was
incomplete”, and a further right “to complete the record and to
demonstrate that the record failed to support the Agency’s
decision”.
The Board further noted that its decision could then
be made on the basis of
the
corrected record
(Id. at 8).
Section 40.1 disturbs only one aspect of that holding.
As it
prohibits Board receipt of “new or additional evidence in support
of or in opposition to” the County’s finding, the Board obviously
could not make a de novo decision on the basis of a corrected
record,
In the interests of “fundamental fairness” however, the
Board
finds that it may properly accept evidence that a record
is incomplete, and that it may direct the taking of such curative
measures
as may be necessary to allow for review of a siting
decision on the merits.
For it is also the Board’s belief that
the Act contemplates that review of the merits of a siting decision
should ultimately be had, so as to discourage the possibility of
the knowing manufacture by any person of procedural errors at
the
local government level,
EVIDENTIARY RULINGS OF THE HEARING OFFICER
In their briefs and on the hearing record,
the parties
raised and preserved several objections to Hearing Officer
rulings concerning testimony and exhibits; the Village also made,
48-99
6
or
attempted
to
make,
some
offers of
proof~
The
Board
hereby
sustains
all
of
the
rulings
r~adeat
hearinç~. Some deserve
specific
co’imoat..,
RespOfldeflts~general objections to “new or additional
evidence”
fal:1, insofar as they relate to testimony and exhibits
concerning the completeness of the record and the “fundamental
fairness of the procedures”
(see p.
4—6,
~
and Order of
July 21,
1982).
issuance of the hearing subpoena for witness
Utt, Bennett, Knuepfer,
and
Swailes and acceptance of their
testimony (as well
as that of O’Neill) was therefore correct.
However,
the Paccione affidavits
(Pet,
Ex.
B,
El, B—2) were
properly denied admission as new evidence in opposition to the
County’s substantive findings
(R.
399, 400),
The Hearing Officer
properly
denied,
as untimely, the
August
16 motion for subpoena for the various documents
(R. 372—
376) catologued and stored at the Helen Plum Library
(R.
378-
379),
The question as to whether certain technical documents
relating to the Mallard Lake landfill could have been properly
subpoenaed at an earlier time will be considered
later in this
Opinion.
The Board reaffirms its
Orders
of
July 21, and August
5,
1982 concerning the admiss:Lbility of evidence concerning the
County Board members motives,
“cx parte” contacts and transcript
reading.
Offers of proof on these points were properly denied
(R.
244—46,
284, 292—298,
464,
467—470).
The Board notes
that
as
Exhibit D—11 was withdrawn
(R.
368),
it was improperly
forwarded
to
the
Board,
THE
MALLARD LAKE SITE,
THE
APPLICATION,
AND
THE
PROCEEDINGS
BEFORE
THE
COUNTY
On October 24, 1972,
the creation of the Mallard Lake
landfill was initiated by a jotht resolution of the County and
the District
(Pet,
Ex. CBA—6).
The District recited its belief
that “certain Forest Preserve lands ~an be improved by creating
lakes and
hills
to enhance their scenic and recreation potential,
in part through
the
use
of the
(sic)
sanitary landfill methods”.
The County stated
its
belief
that
“DuPage County is in need of
areas suitable for the
operation
of
sanitary landfills”, which
the County had
“certain
power
to
:License
and
regulate”.
Accordingly, the County and the District entered into an agreement
allowing the District to operate a landfill at three locations,
one being Mallard Lake.
Pursuant thereto,
in June,
1974 the District contracted with
E
& E to build and operate the Mallard Lake facility,
for
a
period of 10
years,
which
could
be
extended
a
maximum of
9 years.
48-100
7
Two hills were to be created, a “north hill approximately two
hundred
(200) feet in height with a 90—acre base and a south hill
approximately one hundred eighty (180) feet high with a sixty—
five (65) acre base”,
E
& E was to pay royalties to the District,
and to comply with various technical requirements
(Pet,
Ex,
FPD-11,
Ex.
E,
p.
23,
1),
Disputes arose between the District and
E
&
E
concerning the
operation of the landfill, which resulted in the 1979 filing of
actions before the federal court, the circuit court,
and the Board
(Id. p.
1).
On April
1,
1981, the District enacted an ordinance
approving agreement between it and E
&
E for settlement of all
litigation.
As part of this agreement,
it was agreed that E
& E
and the District would jointly petition the Agency “for approval
of plans relating to the modification of the design of Mallard
Lake into an
expanded one—hill concept”
(Pet.
Ex,
FPD—11,
p.
2-3).
On September 10,
1981 the District and
B &
E
submitted to
the Agency an
application
for modification of their original 1974
permit.
At some point thereafter, the two petitioned the County
Board for its
approval of the change to a one—hill design.
The
County granted
its approval by ordinance dated October 27,
1981
(Pet.
Ex, CBA—i0).
The Agency had scheduled a public hearing on the pending
permit application for November 18, 1981.
The passage of SB
172,
effective November 11, 1981, necessitated initiation of its new
formal
siting approval procedures before the County.
The IEPA
hearing was cancelled.
The District and B
& B filed separate requests for approval
with
the County on December 28,
1981 (County Rec,
III
L & M),
accompanied by the “Permit Application Narrative” and “Geology
and Hydrology
Report” which it had also submitted to the Agency
(Id.,
III N, 0).
“Permit application drawings” were also
submitted at some point
(Id.,
III P).
The modification to the original Mallard Lake plan involves
elimination of one proposed hill,
The resulting single hill
would
have an
elevation of 980 feet above sea level
in a project area
containing 560.1 acres, with the landfill taking up 217.4 acres,
This would involve
an
eastward
expansion
on the southern part of
the site and a westward withdrawal on the northern portion.
On January
9 and 22,
the Village informed the County by
letter of its opposition to the proposed modification
(Id. III
C—D).
Following
issuance of statutory notice
(Id.,
H—J), the
County held its
hearing of February 11,
1982.
County Board
Chairman Jack T.
Kneupfer acted as Hearing Officer,
at his own
designation.
The County Board members were present during some
portion of the hearing.
The hearing was conducted jointly with
the Agency which has published its own notice, project summary
and fact sheet,
and which had designated its own areas of review
48-101
8
(Id.,
III B).
The hearing was
conducted
pursuant
to
the County’s
o~written “Rules of Procedures in Connection
with
Public Hearing
on Site Location for
Mallard
Lake Landfill Expansion”
(Id.,
III
A).
At hearing,
six
witnesses
testified
for
the
applicants
in
favor of the
proposed modifications, presenting
15 exhibits
(Id.,
I).
Reference was made by the applicants’ witnesses to documents
concerning
the landfill on file at the Helen Plum Library, but
were not
offered as exhibits
(Id.
I,
p.
23 and 176A,
27B),
Testimony in opposition was presented by several citizens,
Following the hearing,
the County accepted into its
record
two letters, one responsive to a question asked by Mr. Knuepter
at hearing, and
another,
from
the District’s counsel addressing
comments presented by a witness at hearing (III A_G),*
Following the
hearing,
Mr.
Knuepfer
drafted proposed
findings of fact
and
conditions
to
he imposed on a grant of
approval
(Pet,
Ex. D—1),
The initial draft was submitted to the
County
Board’s Finance Committee for consideration at its April
14,
1982 meeting (ER-I).
No agreement was reached,
so the subject
matter was taken up at
6 additional committee meetings, during and
after which revised drafts were framed,
These meetings were open
to the public, but were not noticed as continuations of the SB—172
“puolic hearing”.
The sessions were open meetings, but for
portions which were closed in order to discuss litigation.
Repre-
sentatives of the District
and
B
&
B were present,
and assisted
in the process of revising the working drafts.
No representatives
of the Village were present at any of these meetings
(Pet.
Ex. Dl-
D9).
The County adopted its resolution approving the site, with
conditions,
on April 27,
1982 by a vote of 16—7,
2 members being
absent.
The District enacted an ordinance consenting to the
conditions contained therein on May 18,
1982
(Pet,
Ex,
FPD-9),
THE NATURE OF THE PROCEDURES OF DECISIONMAKING
As earlier
alluded
to
in
the
La Salle discussion, the Board
finds the SB 172
siting
approval
process
to be quasi—judicial and
quasi—legislative in nature~ the statute makes requirements
concerning the form of the decision and record which have judicial
characteristics, while the fact finding public hearing is more
characteristically legislative.
*The information referred to in the preceding five paragraphs,
in addition to the County’s April
27,
1982 resolution approving the
location
~
III,
K)
was
certified
by
the County Clerk as being
“a true and correct copy of the entire record of the proceedings
held by the County...in this matter”,
The Board notes that while
the resolution itself refers to three appendices to it, these
appendices were not included in the record submitted by the County.
48-102
9
The Board finds no fault with the public hearing procedure
employed by the County.
The statute does not require that a
quorum of county
board
members be present at hearing;
the
quorum requirements are relevant only to its final decision.
Mr. Knuepfer’s designation of himself as hearing officer was
not improper, based on this record.
The
County’s creation of
special hearing procedures was not only permissible, but advisable
in the interests of informing the public of the ground rules for
conduct of the hearing.
The hearing itself was conducted in a
fair manner, with ample opportunity for cross—questioning of
witnesses and presentation of public comment.
The County’s discussion of its draft decision at its open-
to—the—public Finance Committee meetings was permissible,
as an
exercise of its quasi—legislative prerogatives in this matter.
However, the County has failed to submit to the Board the
complete record on which
its
decision was based, hampering the
Board’s ability to review its decision.
As noted in the earlier
La Salle discussion, post-hearing contacts must be reflected in
the record submitted to the Board.
The minutes of the Finance Committee meetings reflect that
the discussion revolved around the conditions for approval being
considered by the County.
Additional information, not contained
in the hearing record was received, e.g. an explanation of the
difference between surety bonds and insurance contracts
(April
26,
1982), and an explanation of conditions “which would be impossible
for the operator to meet”
(April 19,
1982).
Based on the record
presented to the Board, the reasonableness of and necessity for
the conditions is impossible to review because of the lack of
information.
The Helen Plum library materials, to the extent they are
relevant to Mallard Lake, should have been entered into the record.
These materials were generally referenced by the District’s
Superintendent Utt, and the public was told it could rely on these
materials.
Finally as previously noted,
the record is also incomplete
insofar as the appendices to the County’s resolution were not
submitted to the Board,
THE COUNTY’S RESOLUTION
The Village asserts that the county board’s substantive
decision was contrary to its own findings of fact and was unsup-
ported by the evidence recited in the resolution itself.
The
Board does not find that SB 172 requires the county to
p~r
se make
“findings of fact and conclusions of law”.
This Board does however
find that since the Board must review the county’s decision and
cannot hold a de novo hearing under the SB 172 provisions,
that
48-103
10
the County’s written decision must clearly indicate the
information which it finds persuasive, and comment on what it does
not.
The reasons for its ultimate conclusions must be made clear.
If conditions are imposed, the County must relate from which of
the statutory criteria they flow, and why they are necessary.
The County’s resolution is deficient in this
regard, as to
some criteria, and all of the conditions:
1.
Necessary to accommodate waste needs of the area it is
intended to serve,
Of the County’s two paragraph consideration of this point,
only one sentence is relevant to this concern:
“flit is necessary
to dispose of urban wastes”.
The county’s resolution does not
speak of the area intended to be served.
The resolution fails
to
explain why use of the expanded facility is necessary after 1993,
the expiration of the original contract period, inasmuch as
approval appears to have been sought for at least 19 years from
the date of issuance of any new Agency permit
(County Rec.
III N).
While there is discussion in the record concerning the capacity
of existing landfills in the area, the Board cannot determine
what,
if any,
of this evidence the County
found credible,
The
County’s bare conclusion cannot be sustained.
2.
Design, location, and proposed operation to protect the
public health,
safety and welfare.
The one paragraph finding answers the design and location
question affirmatively, but lists “concerns” and “reservations”
concerning proposed operation
(p.
7).
The testimony on this point
discussed earlier is also overwhelmingly negative,
as it relates
to concerns about former dumping of sludge in the landfill and
an incomplete leachate collection system, given the site’s
location immediately adjacent to the west bank of the DuPage River.
It is however noted that “the site operator’s practices seem to
have improved in the past few months
(p.
5).
(For guidance on
scope of this criteria,
see Waste Management of Ill.
v.
Board of
Supervisors of Tazewell County, PCB 82—55, August
5,
1982,
p. 10.)
Condition 1,
2, and 4 are obviously related to curing the
County’s concerns,
However,
as the County has not explained the
reasoning behind
its imposition
of these conditions as they relate
to this criteria,
the conclusion and the conditions based on this
criteria must fall,
3.
Location to minimize incompatibility with the character
and property values of the surrounding area.
The County’s one paragraph discussion noted no depreciation
of homes or lots in the area, and stated that berms constructed
on the west and north sides of the site minimize the landfill’s
visual effects.
Paragraph
2 of the “waste needs” section also
48-104
11
supports this finding.
Citation of odor, debris and noise
problems does not undercut the validity of these findings, and
the County
is sustained as to this,
4.
Location outside the boundary of the 100-year floodplain.
The County cites unrehutted evidence on this point,
and its
conclusion stands.
5.
Design to minimize dangers from fire, spills or operational
accidents.
The County determined that fires and spills were not of
concern.
The Board notes that the resolution’s other concerns
are irrelevant
to
this criteria, as they do not relate to
“upsets”.
This finding therefore remains undisturbed.
6.
Traffic patterns designed to minimize impact on the existing
traffic flows.
The County noted that “trucks are a concern on Schick
Road”,
but also noted that increased urbanization has caused
“a sub-
stantial increase in total traffic”,
The precise conclusion was
that the “County has plans to widen Schick Road in the future,
so that we can find no reason for believing that the landfill
materially impacts on traffic
flows”.
The Board cannot sustain the County’s reason as written, as
the record does not detail its road construction plans, although
other credible evidence that the criteria has been satisfied exists
in the record.
Given its findings on these criteria,
the Board will not
further address the conditions themselves.
FAIRNESS OF THE FORUM
The provisions of SB 172 ~r~odied in Sec.
39.2 and 40.1 of
the Act provide, among other things:
1.
That the County Board make the siting
decision;
2.
That, prior to decision, a public hearing
be held;
3.
That local zoning and other land use
requirements shall not be applicable to such siting
decisions,
and
4.
That there be fundamental fairness
in the
procedures.
48-105
I
Standing alone,
the Board
finds
no inherent conflict in the
legislatively granted power of County Board members to serve as
the Commissioners of the Forest Preserve District any more than
it finds any inherent
conflict
in the above referenced provisions
in the Act,
However, in this case, the above named provisions in
the Act came in conflict with each other when the County Board
and the District attempted to implement their responsibilities
under
SB 172, after having made “final’~decisions prior to the
passage of SB 172.
For
example,
the County had approved, by ordinance,
the
landfill expansion and modification
(Pet,
Ex.
CBA-10),
agreed
to
earlier by the District and E & B.
That agreement was embodied
in
a District ordinance
(Pet.
Ex,
FPD—1l),
which itself reflected a
stipulated settlement of litigation between the District and B &
B.
These actions all encompassed extensive conditions concerning the
expansion, operation and use of the landfill,
The County ordinance expressly approved the application of
the District and B & B to the Illinois Environmental Protection
Agency for a permit.
Thus,
by using its land use or zoning power, the County Board
members had approved the site, and as District Commissioners had
contracted with B
& B hauling to operate the site——all before the
public had a chance to participate in a hearing mandated by SB
172.
While any required public hearing should be a meaningful part
of any decisionrnaking process,
the public hearing in the siting
process has legislatively been given particularly high status,
It
must be transcribed
(Sec. 40,1(a)) and must develop a sufficient
record for appeal of the decision
(Sec.
39,2(d)).
If the
decision—
makers have already taken ‘~final”actions in
other
statutory
capacities approving the siting after negotiating certain
conditions, the hearing inevitably loses its intended purpose.
As the Board
noted
in La Salle,
“a public hearing
is for the
public...not simply a hearing to be held in public”
(p.
6).
The difficulty in trying to set post—hearing conditions
under
these circumstances was specifically evidenced in the minutes of
the
County’s
Finance
Committee,
*
Also,
in
the
final
adopted
resolution,
the
County
Board
as
a
whole,
in
considering
the
six
criteria,
had
difficulty in stating its
reasons
for
approval
and
setting
conditions
in
a
manner
that
would
mesh
with
the
prior
litigation
and
settlement terms with
B
& E Hauling.
*Thege
minutes
speak for
themselves:
“The
committee
discussed
the
question
of
whether
or
not
the
County
Board
has
the
responsibility
to
deal
with
the
terms of the contract between B
&
E
Hauling
(footnote
continued
next
page)
48-106
13
Therefore,
the Board
finds
that
the
County
Board
under
these
particular circumstances cannot act
in
conformance
with all the
provisions of SB 172 and still comply with fundamental
fairness.**
In this case,
SB 172’s internal provisions are in conflict.
The Act itself
empowers
no alternative entity to make SB 172
decisions,
The specific intent of the amendment was to divest
the Agency of such authority,
The Illinois Pollution Control
Board,
itself
a
creature of statute, cannot hear such cases
absent legislative direction;
no original jurisdiction has been
vested in the courts.
These alternatives would,
in
any event
be repugnant to the legislative intent to place
siting
approval
decisions in
the
hands
of
elected
officials,
The Village suggests that an alternative decisionmaker is
available,
It suggests that the County could have transferred
its decisionmaking ability to another “unit of local govenment”,
pursuant to the ~
Act,
Ill,
Rev.
Stat,
Ch.
172,
§741
et
seq.
The Board is persuaded by
*(footnote continued from page 12)
and the Forest Preserve District.
Chairman Knuepfer
felt that
given
the
six criteria to be used by the
County Board
in
judging
the suitability of the proposed
modification, that the Board has a right to impose
certain stipulations~
Mr. McNamara representing
E
&
El
disagreed with Mr, Knuepfer’s position that the Board
can renegotiate contract terms, especially since respon-
sibilities and liabilities for operation of the landfill
are established in the owner—operator contract and in
the 1981 court decree from Judge Nolan”
(April 21,
1982).
“On a motion by Vaughn and seconded by Kretschmer
on the committee went into executive session to discuss
probable litigation.
On a motion by Kretschmer and
seconded by Hankinson open session resumed,
Vice—Chairman Lahrier advised those present that
pursuant to the commil:tee’s discussion on probable
litigation,
the committee would recommend the following
changes to the eleven stipulations for approval of the
modification request:
Attorneys
for the Board, the
District,
and
E
&
B to negotiate proposed conditions
3,
4,
6”
(April
23,
1982),
**The
County
Board,
of
course
might
have
tried
to
allow
the District and B
&
B
Hauling
to
prevail
by
doing
nothing,
thus
allowing the approval to
take
effect
by operation of law after
120 days.
The
Board
members
are to be commended for not using
this strategy for 5~cptingout~of a sticky situation and thus in
effect avoiding both the public participation process and their
deliberative responsibilities.
48-107
14
respondents’
arguments that such a transfer as would be involved
here is not contemplated by that statute.
In addition, as a
matter of policy, the Board finds that it would violate the “local
control” intent of SB 172 to have DuPage County transfer its site
approval authority to,
for
example, Kane
(or even Jo Daviess)
County or
to
a municipality within the county, even if these local
governments agreed to such a transfer,
which
they need not.
Since this Board cannot bring consistency to the letter of
the provisions
in
the
Act,
it
feels
that
the
fairest
course
is
to find a method
to
bring
consistency
to
the
underlying
intent
of the Act,
in
particular
the rights of the public to have a
meaningful
“say” and the right to make a decision at the county
level.
In
order
to
avoid
turning
SB 172 into a nullity in this case,
to
preserve
the local control in the decisionmaking process
and
to
preserve
fundamental
fairness
in the decisionmaking process
this
Board
finds
that
a
panel of County officers
(see Sec.
4(c)
of
Art.
VII
of
the 1970 Ill, Constitution) acting in lieu of the
County Board would be appropriate
to the SB 172 process envisioned
in the Act,
These officers are elected countywide and have
not
been involved
in
the
de
facto
prior
approval
exercised
by
the
County Board,
The
noted
record deficiencies should be corrected and the
criteria
should be more specifically
addressed
at a public hearing.
The
Board
again
notes
that
it is not implying that the conduct
per
se
of
the
original hearing was improper or that
it
cannot
be
incorporated
into a subsequent hearing record.
However,
another
hearing
will
serve
to
better
address
the
criteria
“on
point”
without
becoming diverted
by
prior
decisions
that
emanated
from
powers exercised under Chapters 34 and 96½,
The Board construes the 120 day decision period as
re—commencing
on the County’s receipt of this Opinion,
The
Board,
in remanding this back to the County Board,
recognizes
that it
is
placing the County in a difficult and
challenging
situation,
Nevertheless, the Board feels that the
localy
elected County Board officials should be given deference
to allow them to
try
to establish alternate procedures that comply
with the intent of all
the
provisions of SB 172 and the Act,
This Opinion constitutes the Board’s finding of fact and
conclusions of law
in
this matter,
I, Christan
L,
Moffett,
Clerk
of the Illinois Pollution
Control Board, hereb~certifythat the above Opinion was adopted
on the
~
day of
1982 by~avote of
~_?~j
.stan
L.
Mo;
Illinois Pollution
trol Board
48- 108
