ILLINOIS POLLUTION CONTROL BOARD
July
21,
1982
VILLAGE OF HANOVER PARK,
)
Petitioner,
v.
)
PCB 82—69
COUNTY BOARD O~Du PAGE,
)
THE
Du
PAGE
COU~1TY FOREST
PRESERVE
)
CO~1MISSION AND
H
&
H
HAULING,
INC.,
Respondents.
ORDER OF
THE
BOARD
(by J. Anderson):
On July 15,
1982, the County Board
of Du Page
(County) and
the Fo:rest Preserve District of Du Page County (District) peti-
tioried the Board to
review
the Hearing Officer’s orders concerning
discovery in this matter:
a written Order of July
6,
1982
(and
petitioner’s July 7,
1982
written Interrogatories propounded
thereunder)
and the oral rulings of the Hearing Officer on July 9,
1982 “denying the Respondents’ objections
to almost all of the
Interrogatories
set
forth
in
Exhibit B.”
Specifically the County
and
the
District
object
to
interrogatorios propounded to their
members
concerning
pci itical
campaign
contributions
and
“ex—parte”
contacts
(H.O.
O~c1.crII),
presence
at
the
public
hearing
and
~‘ihether
transcripts
were
reviewed
(H.O.
Order
III).
The
Village
of
Hanover
Park
(Village)
filed
its opposition thereto on
July
19,
1982.
Interrogatory
answers
were
ordered
to
be
filed
July
14,
1982.
No answers having been filed, on July 15 the Village moved the
~3oardfor an Order compelling comoliance.
The Village additionally
requested that the Board find that, by their failure to timely
respond to or appeal the Hearing Officers’
Order, the County and
the District had waived the 90—day statutory decision deadline.
On July
16, 1902,
H
& H Hauling resronded to the latter request,
stating that it believed the decision deadline could not be
entencled without its consent.
On July 19,
1982 the Village filed
a
memorandum
in support of its
motion.
The
County
and
District
filed
their
response
on
July
21,
1902.
Finally,
on
July
19
the Village requested that the Board
issue
a
number
of
hearings
subpoenae
which
include
document
demands
relating
to
the
camoaign
contribution
and
“ex-parte”
issues.
It also requested that deposition subpoenae be issued,
a request which
had
been
stayed
by the Hearing Officer pending
47-441
2
answers to the interrogatories complained of.
The Village
asserts
that
emergency
consideration
should
be
given
to
these
requests,
as
the
required
public
hearing
in
this
matter
has
been
scheduled
for
August
2,
1982.
The
Count~’
arid
District
ffi.le1
their
response
on
July
21,
1982.
Currently,
decision in
this
matter
must
be
rendered
by
the
Board
on
August 19,
1982.
Section 40.1(a)
of the Act charges the Board,
in
an
58—172
¶3ttl.ng decision appeal,
to consider “the fundamental
fairness of
the
procedures
used
by
the
county
board..
.
in reaching
its decision”.
Section
39.1. establishes some
of
the procedural
requirements to
h~met by the county
in the process of reaching its decision:
written notice of public hearing,
a public hearing itself,
a
“zritten
decision
based
on statutory criteria, and so on.
Other
‘statutes
impose
other procedural requirements,
such as the
reaching
of
decisions
at
open
meetings,
quorum
requirements,
~nd
so
forth.
Whether
such
requirements
have
been
met
are
the
pro~er
3ubjecb
of
Board
review.
It
is
the
Board’s
opinion
that
the Section 40.1(a) directive that
it
not
hear
“new
or
additional
e~itdencein support of or
in opposition to any finding, order,
:~t5rminat~ofl,
or
decision
of
the
appropriate
county
board”
does
not
bar
discover~’ of
and
introduction
at
hearing
of
evidence
relating
to
the
meeting
of
these
procedural
requirements.
The
record
of
a
“public”
hearing
might
not,
by
way
of
extreme
example,
reveal
on
its face
that
some
or
most
members
of
the
public
were
purposefully
excluded
from
participating
in
a
hearing,
and
a
written decision of a
county
hoard
might
not
on
its
face
reveal
that
it
was
arrived
at
during
a
meeting
at
which
a
voting
quocu~
was
not
present.
Such
facts
must
naturally
he
made
available
for
Board
consideration
if
its
“fundamental
fairness”
review
is
to
have
any
meaning.
These motions raise,
for the first
time
in
this
type
of
appeal, the issue of whether the Board
is charged to review the
motives of the county hoard members in reaching their decision.
If
so,
the
questions
which
seek
to
discover
whether
board
members
received
things
of
value
from
H
&
H
Hauling,
arguably
in
exchange
for
a favorable vote,
are
relevant
and
should
be
answered;
if
net,
nob.
The Board has
long
held
in
the
context
of
its
review
of
Agency perndtting decisions that the motives
per
se
of
the
decisionmaker were not within the scope of its review, and so
finds
in
this
context
as
well.
The
Board
does
not
believe
that,
in
the
90
days
allotted
to
it
for
review
of
these siting
decisions,
that
the
legislature
has
charged
it
to
go
behind
the
recorri
and
to
essentially
conduct
a
mini—investigation
into the
possibility
of corrupt practices or bad faith on the part of
the elected officials making the decision.
Other, and more
appropriate, forums exist for an investigation and redress for
any
such
illegal
actions.
47-442
3
The
Board also finds
the
“exparte” contacts questions to
be improper.
As the County and
the District point cut,
as co—
applicants with H
&
E,
the District members may necE~artiyhave
had contact with
H
&
H COncerning the Districts’
application,
vthich,
in their capacity as County Board members, they were later
to render an
~i3—i72
siting
decision upon.
As the Board
indicated
in
its June 10, 1982 Order,
the issue of whether the Act itself
has
created
a fundamentally unfair procedure by which an individual
in
his
or her capacity as member must adjudicate an application
made by
that
individual
in another official capacity is a
proper
subject
for
Board
review;
in
the
factual
context
of
the
instant
appeal,
“e~ parte”
contact
isa
meaningless
term.
The
Board
finds
that,
while
questions
concerning
Board
members’
attendance
at
the
public
hearing
is
a
relevant
and
d~scoverabie
concern,
general
questions
concerning
their
reading
of
the
hearing
transcripts
are
not.
A
“fundamental
fairness”
review
may
properly
concern
itself
with
whether
the
decisionmaker
had
an
opportnnity~
to
review
evidence
either
by
a)
in
person
attendance at hearing or by b)
review
of
transcripts
physically
available
to
that
individual
prior
to
the
making
of
the
decision;
it
is
inappropriate
to
query
that
individual
as
to
whether
every
word
of
a
transcript
was
read
as
it
would
he
to
query
whether
attention
was
paid.
to
every
word
spoken
at
hearing.
In
sum,
Point
II of the
Hearing
Officer’s
Order
is
reversed
in whole,
and Point lit
is reversed as
it relates to reading of
transcripts.
given
the
Board’s
finding
that
only
questions
relating
to
presence
at
hearing
need
he
answered,
the
motion
to
issue
depo-
sition suhpoenaes
is denied,
as
the
purpose
for
taking
depositions
would
appear
to
he
inquiry
into
matters
not
properly
discoverable.
The
motion
for
issuance
of
hearing
suhpoenae
is
denied
on
the
same
ground.
This
ruling
doa~ not
foreclose
direction
to
the
Hearing
Officer
of
motions
for
issuance
of
subpocnae
which
seek,
for
articulated reasons,
to
compel
testimony
on
relevant
subjects.
The remaining issue is the effect of the Villa.ge’s failure
either to timely
answer
discovery requests or to timely appeal the
Hearing
Officers’
production
order.
The
Board
agrees
with
its
Hearing Officer that “assertions of timely, thoughtful
discovery)
objections...clo not constitute a waiver”
of
the
90 day decision
deadline
(11.0.
Order
V~.
Ho~evor,
the
Board finds that failure to
take
any timely appropriate action does constitute such a waiver,
as to nold otherwise
would
allow
respondents——who
alone
can
extend
the decision period——to deprive petitioners of meaningful
Board
review by willful failure
to
respond
to
legitimate
orders.
In
response
to
H
&
H’s
argument
that
it
has
not
been
party
to
this
delay,
the
Board
finds that,
in this sort of appeal, delay of
one
respondent nay be properly attributed to all to avoid any
possibility
of
collusive
prejudicing
of
petitioners’
rights.
47-443
4
1~
the
::onring Officer,
in
hth
verbal
order
o~ July
9,
19fl2
~
~
~
~
Y:c~u’
•~
~‘.~Y1to
ree~ond to
discovery,
Lu~
~
~p~j
~
~
3
c~1~iy~
~
roe~ondas
~:ell
~
f~ thc
~.1
~‘:y
~.s
a~oa1 h:ts delayed
this
~~:occeding
~/days, the
~v~1
n-l~ ~
~he
:~eiston
n~~iod
h~i~
been t:aivod ~or 7 days
~
~e~e:
of dn~s
actually
taken
for
di~ove:y
production
?~T~
~D
this
tT 13 ~
I,
t~taa
!,.
~‘2fett,
t~ir~rk
of
the
fllinoic;
Pollution
~ntr
1
~oar
1.
here’~y certif’~’ that
the
~vo
O::de~
t’~s
ac1optrd
sa tho
~
‘~.ays~!
~
~
._.
~
by
a
vote
~r:
Chri~tart L,
offett,~Clerk~
Illinoi~
?oilution
Control
Board
47-444