~~r~NoI~O

POLLUTION

CONTROL

BOARD

;ieptember

2O,~ 1985

MCHENRY

COUNTY

L1~NDF:L;;.

~

an Illinois Corpor::.~.

Pet~..

t:

~

v.

)

PCB

85—56

COUNTY

BOARD

OF

i~CHENRY

COUNTY, ILLINOIS~

Respond

and

ARTHUR T.

r4CINTOSN

&

CO.

VILLAGE

OF

LAKEWOOD,

VILLAGE

OF

HUNTLEY,

BUNTLEY

FIRE

PROTECT ION

DISTRICT

LAND~~LL

EMERGENCY

ACTION

COMMITTEE

(LEAC)

AND

MCHENRY

COUNT~i

DEFENDERS,

Cross

Petitioners~

Ohjec’Lo~

I

PCB

85—61

through

PCB

85—66

MCHENRY

COUNTY

LANDFILL

1NC~

AND;

)

(consol id~ted)

COUNTY

BOARD

OF

.MCHEN~Y

CCU~T~,

Resp’~ndsot~

OPINION AND ORDER

QV

T~’EF

~OARE

(L’y

J.D,

Dumelle):

This

mactsr

L~:c~:e~:b5

Board

upon

the

April

23,

1985

appeal

by

McHenry

C~:n~y

L~n~dfifl,

Inc.

(Landfill) from the March

20,

19B5

decision

of

tUe

~ounty

Board

of

Mcflenry

County

(County

Board)

denying

eite

s~i~t~Ii.~:y

approval

for

a

new

regional

pollution

contrci

:~ai.I:~,~

nu~snant

to

Section

39.2

of

the

Illinois

Envirom~cn::~J~c

:e

.~o.

Act

rAct)

,

On

M~y 2,

~fl5,

t~

Board

ordered

the

Co~nt~

~

to

prepare

and

file

the

record

on

appeals

The

County

Cls.~::

~cEe~:y

County

filed

the

record

on

May

23,

1985.

On

May

37

~

~

~

~:1s

were

filed

by

Village

of

Huntley,

Landfii~. E~

c~1:

Uc~:.!

on

Committee,

McHenry

County

Defenders,

Arth~u:

T.

U~nt~sn

Co.,

Village

of

Lakewood,

and

---

—2—

Huntley Fire Protection District

(Objectors).

To avoid

administrative confusion, each of

these cross—appeals were

assigned separate docket numbers, PCB 85—61 thru PCB 85—66,

respectively.

On May 7, 1985,

a motion

to strike each of these

cross—appeals was filed by Landfill.

Landfill asserted that the

various Objectors had no standing

to pursue a cross—appeal since

they do not become Hparties~vat the County hearing

level under

the statutory scheme laid out

in SB—l72.

On May

30,

1985,

the

Board

found

that

denial

of these cross—appeals would

“frustrate

SB—l7Vs policy

of

reviewability of

all local decision.

Formal

party status a~: :.Ue county level does not lie at the heart of SB—

172 procedures~~rticipation

at the County’s hearing

is the

determinant

foi: e~bsequentappeal rights.”

Consequently,

the

Board ordered tUat the cross—appeals should proceed and be

consolidated ~~tU PCB 85—56 for hearing and decision.

On July

2t~

.L985,

a hearing was held before

the Board at

which additiona~ oxhibits were received into evidence and

a

decision was

maL~

on

a briefing schedule.

Briefs of Landfill,

McHenry County( ~nd Objectors were filed between August

9th and

September

3,

I~UI:,.

Under

Secr:~nn

39.2(a)

of the Act,

local authorities are

to

consider six

c

:eria when reviewing

an application for

site

suitability app~o~ialfor a new regional pollution control

facility.

Upon r:onsidering these criteria, the local

authorities

either grant

o:~: neny site approval.

This decision

is reviewable

by the Board pu~ouantto Section 40.1(a)

or Section 40.1(b)

depending

on whether the local authorities deny or grant

site

approval.

In reviewing the decision of the local authorities,

the Board considers the six criteria set out in Section 39.2(a)

and the fundamental

fairness of the procedures used at the

hearing conducted by the local authorities

under subsection

(d)

of Section 39.2 of

the Act.

Several issues regarding fundamental fairness have been

raised by parties including:

1.

Application of improper standard of proof or burden of

persuasion;

2.

Use of improper standards without notice;

3.

Improper limitations on production of evidence and

consideration of motions; and

4.

Open Meetings Act violations.

First,

Landfill alleges that the County Board applied the

improper standard of proof

to Landfill’s application for

site

suitability approval

for

a new regional pollution control

facility.

The

ttunty Board

in its Order of March

20,

1985 states

that “the Petitioner

is required

to show that the

record supports

all

six criteria

by

the manifest weight of the evidence.”

(Order

65-488

---

—3—

p.

4)

Further, 0h!sctor Landfill Emergency Action Committee

stated

in

its

cloning

argument that “the burden

is on the

petitioner

here

to

show by the manifest weight of the

evidence..,’~*.

(1L~ 3022),

McHenry County contends that the

County Board3s orden~ “merely indicated that

...

the petitioner

must create

a

record

where all six criteria may be upheld upon

review by the BoarU

opplying

the manifest weight standard.”

(McHenry County

B?:ic~:

pp 7-8).

However, other

than the County’s

bald assertion,

no e’n~dencewas presented to demonstrate that the

preponderance of

the

evidence standard was in fact used by the

County in delibera,.:::.og this application.

Rather,

the Board

finds

that the clear lan~nage in the County Board’s Order

indicates

otherwise.

Hearings conducted pursuant to Subsection

(d)

of Section

39.2

of the Act am

civil

in nature.

The burden of proof

in a

civil proceeding i~a preponderance of the evidence.

Industrial

Salvage Inc.

v. Co~nt~

Board of Marion, PCB 83—173 (August

2,

1984, pp 3—4)citinçLrrington v. Walter

B.

Heller International

Corp.,

30

Ill.

A~p

3d 631,

333 N.E.

2d 50

(1975).

A proposition

i~proved by a preponderance of the evidence when

it

is more

probably true than not.

Industrial

Salvage,

Inc., supra,

citing

Estate of Ra9~n,

19

Iii. App. 3d

8

(1979).

The evidence

in the

record indicates

that Landfill’s application

for site suitability

approval was judged by the manifest weight of the evidence.

(Order,

p.

4).

The

proper standard of proof on which to judge

Landfill’s application

should have been a preponderance of the

evidence rather

than the

manifest weight of the evidence.

In

other words~. in ~r~atzinq

it~decision the County Board should

determine whether

a

preponderance of the evidence supports

Landfill’s applicatthn

for

site suitability approval for

the six

criteria

set oot

E;ection 39.2(a)

of the Act.

Second,

LanUi:~1i

alleges that the “siting request was judged

by unlawful stan

~:da’~

in

that the County Board applied

“standards

which ~‘e~:einconsistent with state regulations.”

(Pet.

Brief, Aug.

9: ~i985,pp.

39—40).

The allegedly improper

standards

are saiL to have been applied regarding soil

permeability and

testing,

the need for

a leachate collection

system,

and post~f:.Losurecare.

Landfill apparently believes that

if an applicant can prove compliance with all Board standards

regarding

the

desiqr

end

operation

of

the

facility

the

County

Board

must

find

the:

rhe

second

criteria

under

Section

39.2

of

the

Act

to

have

been

met.

To

do

otherwise,

Landfill

contends,

would

contravene

Lhe-.

need

for

“uniform

statewide

environmental

standards,”

citLop

County

of Cook

v.

John

Sexton

Contractors

Co.,

75 Ill

2d 494~ 339 N~E.

2d

553

(1979).

However,

to

the

extent

*Also,

at

the Feb

2i~

1985

proceeding

before

the McHenry County

Siting Committee~~the findings of the Committee state

that “the

petitioner

is

rennired

to show that the record supports all six

criteria by the ~r:onifestweight of the evidence.”

(Corn, hearing

p.

12).

65-489

---

.4..

that there are standards regarding the issues raised by Landfill,

these are minimum standards

and

simply meeting those standards

may not be sufficient in

any

particular case.

Without addressing

the propriety of the ‘standards’ used by the County Board in

assessing the second criterion (which goes to the merits rather

than the fundamental fairness of the proceeding), the Board

cannot

conclude

that

the

stan4ards

used

by

the

County

Board

rendered

the

proceeding

fundamentally

unfair.

The

standard

to

be

met

is

that

explicitly

stated

by

the

criterion:

i.e.

‘the

facility is so designed, located

and

proposed

to

be

operated

that

the public health, safety and welfare will be protected.’

(Section 39.2(a)(2) of the Act).

If the preponderance of the

evidence supports such a finding, the criterion is satisfied and

the County Board should so conclude.

If Landfill believes the

County Board used improper standards in reaching its conclusion,

then Landfill has the opportunity to demonstrate the invalidity

of that conclusion to the Board.

Third, the Board finds that the County Board’s refusal to

allow certain evidence to be presented did

not

render the

proceeding fundamentally unfair.

Even if the Board were to

conclude that the limitation on admissible evidence was improper,

that

defect

was

largely

cured

through

the

County

Board’ s

questioning

later

in

the

hearing

process

during

which

the

desired

testimony

was

presented.

At

the

County

hearing, Landfill attempted to present

evidence regarding certain recommendations of its consulting

hydrogeologist, Dr. Rauf Piskin, regarding design and operating

recommendations more restrictive than those contained in the

application.

The Hearing Officer struck

that

pert of testimony

on the basis that evidence must be based on the applicatijon as

originally submitted in order to avoid infringing upon notice

requirements.

(R.

1510—1512).

Landfill contends that such a

limitation rendered the proceeding fundamentally unfair.

Landfill argues that the ‘notice requirements provided

absolutely no basis for the Hearing Officer’s ruling’ in that

‘none of the design and operating criteria recommended by Dr.

Piskin would have resulted in any changes to the statutory

notice.’

(Pet. Brief, p. 50).

Similarly, Landfill contends that

the Hearing Officer’s refusal to allow it to present testimony

‘regarding its willingness to agree to certain conditions’ was

also unfair.

(Pet. Brief, pp. 52—53).

Landfill’s argument regarding the lack of impact on the

notice requirements does not go far enough.

The function of

notice

and

the

required

time

period

between

notice

and

hearing

is

first

to

inform

the

affected

public

that

a

landfill

site

suitability approval process has been initiated

and,

second, to

allow time for the public to review the application to determine

whether, or in what manner, further participation is warranted.

The Hearing Officer concluded that the evidence attempted to be

presented ‘in a defacto way or expressly’ constitutid an

N4~

---

—5—

amendment of the application,

(R. 1510—1511).

The Roard does

not disagree with that determination.

If such an amendment

were

allowed during the course of the proceeding,

a member of the

public who may have decided not to participate because the

application seemed acceptable would not have had the opportunity

to

review the amended application.

Further, even if he

participated and did become

aware of the amendment,

he might not

have

the

necessary

time

to

adequately

respond

to

any

changes.

The same may be true of the County or any other participants.

This could

e cured, however, by allowing such

evhfrnce

to

be

presented ac a later hearing contingent upon

the

applicant

serving sufficient notice

upon

those required to be notified of

the

origina:L application and hearing date and executing

a waiver

for

the

period

of

time

necessary

to

schedule

and

hold

the

additional hearing.

Such procedures would be preferable

to

a

limitation on testimony.t

Landfill impliedly argues that in this case, where the

Wamendmentu

is more restrictive than the original.application,

such an analysis must fail,

However,

simply because Landfill

believes the changes to be more restrictive, does not mean

it

is

so.

DetermLnations of what

is more or less restrictive

can be

the subject of heated debate even among experts in the field of

landfill design and operation, and certainly a member of the

County Board or the public could disagree with Landfill’s

judgment of what is more restrictive.

For example (and without

implying any substantive finding on this issue),

an amendment

to

have several times as many boring samples taken of the liner

material may to some appear ‘more restrictive.

However, others

may believe that an increase

in

the

number of such samples will

not result in any significant improvement in the soil analysis

while

it could create additional discontinuites in the liner

material which would increase the potential

for leakage of

leachate.

Thus,

they may believe

the

amendment

to be

less

~ restrictive.

As the County states, its primary concern ~is to let

the

County

Board members and the public know what specifically

is

being proposed so that comments can be written, investigations

conducted,

testimony offered and

a decision made based on the

same set of facts

that

everyone has notice,’

(County Brief,

pp.

9—10).

That goal

is not only fundamentally fair, but also

laudable.

However, there are also competing

interests

involved,

The County does have the power

to impose conditions

upon

site location approval

(in effect to

make

its own amendment

to

the application although it is not mandated to consider such

conditions)

and the ruling here tends to frustrate

the use of

that power as pointed out by one of the County Board members

*

The Board notes that the County ordinance was not used

as

the basis of the ruling at the County Board hearing and,

in fact,

had not been adopted at the time of hearing,

The question of the

propriety of the ordinance is,

therefore,

not before the Board.

85.491

---

—6—

(Pst.

Ex.

4, pp.

22—23).

Also, an overly strict

construction

of

what

constitutes

an

attempted

amendment

and

evidence

pertaining

solely

to

such

amendment

could

be

abused

to

the

point

where

an

applicant’s

attempt

to

obtain

a

final

decision

in a timely

fashion could

be frustrated, although that does not appear

to be

the case here, especially since

the County Board was allowed

to

ask

Dr.

Piskin

about

his

recommendations, thereby ameliorating

any harm which Landfill may have suffered due

to the County’s

denial of

its offer of evidence.

This questioning appears

to

have elicited most,

if not all,

of the testimony Dr.

Piskin had

attempted

to present earlier.

(R.

1136—1146).

To summarize,

the Board

finds that the County Board’s

refusal

to allow testimony was not fundamentally unfair, but

cautions that such refusals should be carefully considered.

Only

rarely will the Board find the acceptance of evidence

to be

reversible error whereas the refusal will be closely

scrutinized.

Testimony which is accepted can be disregarded, and

the

Board

favors

a

liberal

construction

of

admissible

evidence.

Certainly, unfair

surprise which time

does not allow

to be

corrected should be avoided where it could have a substantial

impact on the integrity of the proceeding, but

the County Board

should be

cautious in finding that such surprise exists.*

On

consideration

of

motions,

the

Board

finds

that

the

County

Board’s decision

to close the record and consider

the comments

where

one cross—petitioner

offered another

“motionTM did

noi

render

the proceeding fundamentally unfair.

Eventually, the

record must close

and

a decision must be reached.

Given the time

constraints of the Act, the eighty—four hours of testimony and

the volume of comments in this case,

the County Boara properly

exercised its discretion

to keep the record closed and to make

a

recommendation.

This

decision did not constitute fundamental.

unfairness

to cross—petitioner.

Lastly,

Landfill alleges that the McHenry County Siting

Committee (Committee)

conducted a “meeting” on February

18,

1985,

in violation of the Open Meetings Act

(Ill. Rev. Stat.

1983,

ch.

102, par.

41

et seq.).

(Pet. Brief pp.

53—57).

This “meeting”

was conducted after

the Committee held its first public meeting

on

the

same

day.

After

this public meeting, the Chairman and the

Committee’s

two

attorneys

adjourned

to

the

Supervisor

of

Assessor’s office

in the McHenry County Courthouse.

At this

“meeting,”

the Chairman summoned, one at a time, five of

the

six

Committee members

(who were gathered outside of the Assessor’s

office)

to discuss~the merits of Landfill’s application for

a new

regional pollution control facility, with the Chairman and the

attorneys.

At the Pollution Control Board hearing on July

25,

*

In most,

if not all cases,

even

this element of

suprise

could

be avoided by the applicapt’s waiver of the statutory

decision

date

for a period of time sufficient

to cure

that

surprise.

85-~92

---

—7—

1985,

the parties stipulated that the four Committee members

gathered

outside

of

the

Assessor’s

office

did

not

discuss

public

business.*

(Board

hearing,

pp.

41—42).

Consequently,

regardless

of

whether

the

Open

Meetings

Act

applies,

the

Board

concludes

no

“meeting”

was

conducted

by

the

Chairman

and

the

Committee’s

attorneys which could have violated that Act.

The

Open

Meetings

Act

defines

a

“meeting”

as

“any

gathering

of

a

majority

of

a

quorum

of

the

members

of

a

public

body

held

for the purpose of discussing public business.”

(Ill. Rev.

Stat.

1983,

ch.

102, par.

41.02).

Seven people constitute

the McHenry

County Siting Committee.

At the Pollution Control Board hearing

on

July

25, 1985,

the parties stipulated that a quorum of the

Committee

was

five

out

of

seven

(Board

hearing,

p.

39).

A

majority

of

a

quorum

of

the

Committee

would

be

threes

The

“meeting” conducted by the Chairman and

the Committee’s attorneys

never exceeded two.

Consequently, the Board

is of the opinion

that no “meeting” occurred as defined

in the Open Meetings Act

since

no majority of a quorum of the Committee was present at one

time to discuss public business.

In addition, the Board

finds

that

while

the

structure

of

the

“meeting”

of

the

Chairman

and

the

Committee’s

attorneys

with

five

members

of

the

Committee,

one

at

a

time,

is

unfortunate

in

that

it

may

have

had

the

appearance

of

improper deliberations, the “meeting”

is not within the intent of

the Open Meetings Act.

One of the purposes of the Open Meetings

Act

is

to prevent a caucus of a controlling number

of members of

a

public

board

from

deliberating

in

private.

However,

it

is

not

the

purpose

of

the

Open

Meetings

Act

to

bar

all

discussions

of

public business

in private among those who have the

responsibility to decide public matters.

Lastly, the Board notes

that one of

the goals of the landfill siting process

is

to ensure

maximum public participation through proceedings open

to the

public.

The

Mclienry

County

Siting

Committee

is

urged

to

do

everything within

its authority to ensure that this goal

is

achieved.

Since

it

is

the

Board’s

opinion

that

McHenry

County

applied

the incorrect standard

of

proof

to

Landfill’s

application

for

site approval, the Board has no proper subject

for review before

it.

Consequently,

the Board does not reach

a decision on the

merits of any other issues,

and remands this case

to

the County

Board, directing it

to apply

the

proper

standard

of

proof

to

Landfill’s application

for site suitability approval consistent

*it should be noted

that five Committee members were gathered

outside of

the

Assessor’s

office

but

that

at

any

one

time

four

were outside and one was inside discussing

the merits of

petitioner’s application with the Chairman and the Committee’s

attorney.

Also

the

Board

does

not

construe

the

gathering

of the

four Committee members outside of the Assessor’s office to be

“held

for

the

purpose

of

discussing public business” since

their

“purpose” was

to await one—on—one discussion of the proceeding

rather

than

to

discuss

it

among

all

those

waiting.

65-493

---

—8—

with

Industrial

Salvage,

Inc.

v.

County

Board

of

M~r1on,

PCB

83—

173

(August

2,

1984,

pp

3—4).

Nothing

in

this

opinion

should

be

construed

to

imply

that

the

Board

requires

a

new hearing.

The

Board

only

requires

a

new

vote

to

be

taken

after

applying the

correct

standard

of

proof.

However,

the

McHenry

County

Board

may

take whatever actions it deems appropriate consistent with this

opinion.

This opinion constitutes the Board’s findings of fact and

conclusions

of

law

in

this

matter.

ORDER

Upon

review

of the McHenry County Board’s decision denying

site

suitability

approval

to

McHenry

County Landfill,

Inc.

for

a

new

regional

pollution

control

facility,

the

Board

hereby

remands

the

case

to

the

McHenry

County

Board

directing

it

to

apply

the

preponderance

of the evidence standard of proof to Mcflenry County

Landfill,

Inc.’s

application

for

site

suitability

approval

for

a

new

regional

pollution

control

facility.

IT

IS

SO

ORDERED.

Board

Members

J.

Theodore

Meyer

and

.3.

Marlin

dissented.

Board

Member

1.

Anderson

concurred.

I,

Dorothy

M.

Gunn,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above

Op~,nion and

Order

was

adopted

on

the

_______________

day

of

~

,

1985

by

vote

of

____________.

‘0’

Dorothy

M.

dunn,

Clerk

Illinois Pollution Control Board

65-494