ILLINOIS POLLUTION CONTROL BOARD
December 5, 1996
CITIZENS OPPOSED TO ADDITIONAL
LANDFILLS and HARVEY PITT,
individually and as a member of Citizens
Opposed to Additional Landfills,
Petitioners,
v.
GREATER EGYPT REGIONAL
ENVIRONMENTAL COMPLEX a/k/a
GERE PROPERTITES, INC., and the
PERRY COUNTY BOARD OF
COMMISSIONERS,
Respondents.
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PCB 97-29
(Pollution Control Facility
Siting Appeal)
MR. KENNETH A. BLEYER APPEARED ON BEHALF OF THE PETITIONERS;
MR. JEERY B. SMITH APPEARED ON BEHALF OF GREATER EGYPT
ENVIRONMENTAL REGIONAL ENVIRONMENTAL COMPLEX; AND
MR. DAVID M. STANTON, PERRY COUNTY STATE’S ATTORNEY, APPEARED ON
BEHALF OF PERRY COUNTY BOARD OF COMMISSIONERS.
OPINION AND ORDER OF THE BOARD (by J. Yi):
On August 9, 1996 the petitioners, Citizens Opposed to Additional Landfills
(“C.O.A.L.”) and Harvey Pitt, individually and as a member of C.O.A.L., pursuant to
Section 40.1 of the Environmental Protection Act (Act) filed a petition for review. (415 ILCS
5/40.1(1994).) They are appealing the Perry County (County) decision of July 9, 1996 to
grant local siting approval for a pollution control facility to the Greater Egypt Regional
Environmental Complex a/k/a Gere Properties Inc. (G.E.R.E.). Petitioners request the Board
to reverse the County’s decision on the grounds that the County lacked jurisdiction, that the
proceeding before the County was fundamentally unfair and that the decision of the County
was against the manifest weight of the evidence concerning the challenged criteria of Section
39.2 of the Act. (415 ILCS 5/39.2 (1994).) For the reasons enunciated below, the Board
finds that the County did have jurisdiction to hear the application. However, we find that the
proceeding before the County was fundamentally unfair and so do not reach the third issue
concerning the manifest weight of the evidence of the challenged statutory criteria. The
County’s decision is reversed and the matter is remanded for further hearings.
2
STATUTORY FRAMEWORK
At the local level, the siting process is governed by Section 39.2 of the Act. Section
39.2(a) provides that local authorities are to consider as many as nine criteria when reviewing
an application for siting approval. These statutory criteria are the only issues which can be
considered when ruling on an application for siting approval. Only if the local body finds that
all criteria are satisfied can siting approval be granted. In this case, the County found that all
of the applicable criteria had been met, and granted siting approval. When reviewing a local
decision on the criteria, the Board must determine whether the local decision is against the
manifest weight of the evidence. (McLean County Disposal, Inc. v. County of McLean (4th
Dist. 1991), 207 Ill.App.3d 352, 566 N.E.2d 26, 29; Waste Management of Illinois, Inc. v.
Pollution Control Board (2d Dist. 1987), 160 Ill.App.3d 434, 513 N.E.2d 592, E & E
Hauling, Inc. v. Pollution Control Board (2d Dist. 1983), 116 Ill.App.3d 586, 451 N.E.2d
555, aff'd in part (1985) 107 Ill.2d 33, 481 N.E.2d 664.)
Additionally, the Board is authorized to 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. (E & E
Hauling, Inc., 451 N.E.2d 555, 562.) In this case, petitioners have raised challenges to the
jurisdiction of the County to hear the application, the fundamental fairness of the local
proceeding, as well as challenges to the County's decisions on two of the criteria. Since
jurisdiction is a threshold issue, we will address that claim first, then proceed to fundamental
fairness, and finally the challenged siting criteria of Section 39.2(a) of the Act. (415 ILCS
5/39.2(a) (1994).)
BACKGROUND
On January 23, 1996, G.E.R.E. filed an application for siting approval for a 257-acre
pollution control facility to be located in Perry County. (Application Doc. 2 Vol. 1 at 8.)
1
The facility is a part of the Greater Egypt Regional Environmental Complex (Complex), which
is proposed as an "integrated, organized, and programmed complex consisting of a number of
commercial, industrial, and solid waste control facilities and environmental programs, sited,
designed, and operated so as to blend with the natural ecosystem and provide maximum
positive benefits to the community and region." (Application Doc. 2 Vol. 1 at 1.) The
proposed facility would consist of a material processing facility, a composting facility, and a
sanitary landfill. (Application Doc. 2 Vol. 1 at 5.)
The site is generally described as a reclaimed coal strip mine(s) situated in an
agricultural setting. (Application Doc. 2 Vol. 1 at 8.) Hearings were held before the County
on April 25, 1996 and April 29, 1996. On July 9, 1996, the County entered its written
1
The Record below was not sequentially numbered throughout. Specifically G.E.R.E.’s
application was not numbered. Therefore the reference to the application will be “Application
Doc. Vol. at ”.
3
decision granting approval, finding that it had jurisdiction over the application, and that
G.E.R.E. established compliance with the applicable criteria. (Pet. Exh. 5.)
2
On appeal before the Board, C.O.A.L. alleges that the County did not have jurisdiction
to proceed on G.E.R.E.'s application, that the proceedings before the County were
fundamentally unfair, and that the County's findings that G.E.R.E. met the criteria of Section
39.2(a) of the Act are against the manifest weight of the evidence. The Board held a hearing
on October 2, 1996.
3
C.O.A.L. filed its post-hearing brief on October 23, 1996, G.E.R.E.
and the County filed their post-hearing briefs on October 30, 1996, and C.O.A.L. filed its
reply brief on November 6, 1996.
4
ARGUMENT AND ANALYSIS
Jurisdiction
Arguments
C.O.A.L. argues that the County did not have jurisdiction to rule on G.E.R.E.’s
application because service of notice was not made on a property owner within 250 feet (ft.) of
the lot line of the proposed facility as required by Section 39.2(b) of the Act. (Brief at 5-8.)
C.O.A.L. claims that the jurisdictional argument was made at the time of the hearing before
the County and that the County did not have jurisdiction to entertain G.E.R.E.’s application
for siting. (Brief at 5.) C.O.A.L. states that G.E.R.E. filed receipts for certified mailings to
landowners evidencing its compliance with the statutory notice provisions. As part of that
exhibit, one of the official notices is marked “returned to sender”. (Brief at 5.) C.O.A.L.
contends that the official notice is addressed as follows:
Mrs. Mary Jane Hudson Summers
Route #1, Box 854
Sesser, IL 62884
and is from counsel for G.E.R.E. and it is marked “return receipt requested”. (Brief at 5.)
C.O.A.L. asserts that it was returned to G.E.R.E., as stated in bold marking on the envelope,
“NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD”. (Brief at 5-6.)
C.O.A.L. states that G.E.R.E. was correct at the time of sending official notices in
identifying Mrs. Mary Jane Hudson Summers as a person owning real property within 250 ft.
of the G.E.R.E. lot line, who, pursuant to Section 39.2(b) of the Act, should have received
2
The petitioners’ exhibits will be referenced to as “Pet. Exh. at ”.
3
The transcript will be referred to as “Tr. at ”.
4
Petitioners post-hearing brief will be referenced to as “Brief at .”, G.E.R.E.’s post hearing
brief will be referred to as “G.E.R.E. Resp. at ”, the County’s post-hearing brief will be
referenced to as “Cty Resp. at .”, and petitioners’ reply brief will be referenced to as “Reply
at ”.
4
official notice of the application. (Brief at 6.) C.O.A.L. asserts that “G.E.R.E. prepared and
sent Summers a notice on 29 December 1995 to Sesser, Illinois” and that at the time of
preparing the notices G.E.R.E. utilized the 1993 county collector’s records. (Brief at 7.)
C.O.A.L. argues, however, that at the time G.E.R.E. prepared and sent its notice to all
the property owners within 250 ft., Mrs. Summers resided in Christopher, Illinois. (Brief at
7.) C.O.A.L. maintains that “[a]t the time G.E.R.E. prepared and sent its official notices all
of the current authentic tax records of the County had shown Summers her (sic) correct
Christopher, Illinois address since July, 1995.” (Brief at 7-8.) C.O.A.L. states that the
County Treasurer’s office showed Summers’ Christopher, Illinois address correctly at the time
it mailed the 1994 tax bill in July, 1995. (Brief at 7, Tr. at 9.) C.O.A.L. asserts that the
County Treasurer obtained the address from the County’s Assessor which had Summers’
correct address as part of its records since July, 1994. (Brief at 8, Tr. at 29.) C.O.A.L.
argues that “G.E.R.E. did not attempt to controvert this evidence that for more than five (5)
months prior to preparing and sending its notice, as of July, 1995, all of the following
authentic tax records of Perry County, Illinois, showed Summers address as having been
changed from ‘Route #1, Box 854, Sesser, IL 62884’ to her correct address ‘800 Such Victor
Street, Christopher, IL’: Office of the Perry County Assessor, Office of the Perry County
Clerk & Recorder, and Office of the Perry County Treasurer.” (Brief at 8.) Therefore
C.O.A.L. concludes that G.E.R.E. failed to give Mrs. Summers the notice required under the
statute which prevented the County from having jurisdiction to rule on G.E.R.E.’s application.
(Brief at 8.)
G.E.R.E., citing to Section 39.2(b) of the Act, states that “[t]he law defines ‘owners’
as being ‘such persons which appear from the authentic tax records of the county in which
such facility is to be located, and in no event shall this requirement exceed 400 feet including
public streets, alleys and other public ways.’” (G.E.R.E. Resp. at 2) G.E.R.E. maintains
that the County when approving the application found:
That the Perry County board has jurisdiction to rule on the GERE application for siting
approval of a pollution control facility based upon the applicant’s proper notification as
provided by Illinois Statutes as they pertain to the persons and entities that appear on
the authentic tax records of Perry County which are maintained by the Perry County
Treasurer. (G.E.R.E. Resp. at 1.)
G.E.R.E. maintains that out of 71 notices, only the notice sent to Mrs. Summers at
Route #1, Box 854, Sesser, Illinois 62884 was returned marked “unable to forward”.
(G.E.R.E. Resp. at 2.) G.E.R.E. argues that it utilized the authentic tax records of the
County, and therefore met the requirements of Section 39.2(b) of the Act. (G.E.R.E. Resp. at
2-4.)
G.E.R.E. asserts that Mrs. Summers testified at the hearing that she had moved from
Sesser to Christopher after a divorce in 1990, but that she did not notify the County of her
change of address until July of 1994. (G.E.R.E. Resp. at 3, Tr. at 64.) G.E.R.E states that
the notice was given to the County Clerk, who gave it to the Assessor, who changed its 1994-
5
1995 books by scratching out the address on one side and writing the correct address on the
opposite page column. (G.E.R.E. Resp. at 2, Tr. at 23-26.) G.E.R.E. argues that the Mrs.
Summers’ change of address did not appear on the County Treasurer’s official tax records until
January 17, 1996, 19 days after the G.E.R.E. mailed its notice. (G.E.R.E. Resp. at 3, Tr. at
16.) In support of its contention, G.E.R.E. notes that “[d]espite all of the above record
revisions and corrections, Mary Jane Hudson Summers testified that she had not received her
tax bill for 1996, which was now overdue, and that she was headed to the courthouse after
testifying”. (G.E.R.E. Resp. at 3, Tr. at 67.)
To further support its argument, G.E.R.E. notes that Mr. Cha Hill, the Perry County
Treasurer, filed an affidavit with the County Clerk during the 30-day public comment period.
In his affidavit Mr. Hill stated “that GERE used the most current records in his office in
ascertaining the owners and addresses of all property within 250 feet of the pollution control
facility.” (G.E.R.E. Resp. at 3, Resp. Exh #1.) Additionally, G.E.R.E. states that Mr. Hill
testified “that the only records available in his office on December 29, 1995, showed the name
and address of Mary Jane Hudson as Route 1, Box 854, Sesser, Illinois 62884 which is the
address used by GERE in sending its notice of filing”, and that “the official tax records
showing Mary Jane Hudson’s Christopher address were not printed and available to GERE
until January 17, 1996, after the GERE notices were mailed on December 29, 1995”.
(G.E.R.E. Resp. at 3, Tr. at 16.)
G.E.R.E citing to DiMaggio v. Solid Waste Agency, PCB No. 89-138(1990) and
C.O.A.L. (Citizens Opposed to Additional Landfills) v. Laidlaw Waste Systems Inc. and the
Perry County Board of Commissioners, (212 Ill. App. 416, Fifth District, 1995)(Rule 23
Order)
5
, argues that it utilized the authentic tax records for the County when it mailed the 71
notices, and is not required to search all of the County’s records to determine the authentic tax
record.
G.E.R.E. presents an additional argument concerning the question of jurisdiction
despite maintaining that the above-discussed argument and authority is conclusive. G.E.R.E.
also argues that petitioners have failed to demonstrate that Mrs. Summers property is located
within 250 feet of the lot line of the subject property. (G.E.R.E. Resp. at 4-5.) G.E.R.E.
states that petitioners had failed to have Mrs. Summers testify that her property was within 250
feet of the lot line of the subject property. (G.E.R.E. Resp. at 4.) G.E.R.E. states that
petitioners attempted to compensate for not having Mrs. Summers testify as to the location of
her property by arguing that G.E.R.E. would not have sent notice if she were not within 250
ft. of the landfill lot line. (G.E.R.E. Resp. at 4-5.) G.E.R.E. asserts that its attorney’s
affidavit of mailing states that “he mailed notice of filing to all owners within 400 feet of the
668 acre property boundary” which means that notice was mailed to all property owners within
700 feet of the pollution control facility boundary and does not demonstrate that Mrs.
Summers property was within 250 ft. of the property line. (G.E.R.E. Resp. at 5, Resp. Exh.
#2.).
5
See also C.O.A.L. (Citizens Opposed to Additional Landfills) v. Laidlaw Waste Systems Inc.
and the Perry County Board of Commissioners, (January 21, 1993), PCB 92-131.
6
Additionally, G.E.R.E. notes that petitioners presented testimony from Mr. Walker
that, based on his knowledge, Mrs. Summers’ property is located within 250 ft. of the
property line. (G.E.R.E. Resp. at 5, Tr. at 91.) G.E.R.E. states, however, that on cross-
examination, Mr. Walker testified that Mrs. Summer’s property was 400 feet from the
pollution control facility boundary if the lot line is 300 feet within the G.E.R.E. property
boundary. (G.E.R.E. Resp. at 5, Tr. at 92.) G.E.R.E. alleges that the landfill is located on a
668 acre site and that the actual landfill lot line is set back at least 300 feet on all sides from
the 668 acre boundary line. Citing to Land and Lakes Co. v. Romeoville, (August 26, 1991),
PCB 91-7, and C.A.R.L. v. Whiteside County, (February 25, 1993), PCB 92-156, G.E.R.E.
maintains that it fully compiled with all statutory requirements of Section 39.2(b) of the Act,
and that the Perry County Board had jurisdiction to act on G.E.R.E.’s siting application
because it was not required to serve notice on Mrs. Summers because she is not within 250 ft.
of the landfill lot line. (G.E.R.E. Resp. at 6.).
In reply to G.E.R.E.’s first argument, C.O.A.L. states that the parties agree that the
statute requires that Summers receive notice; that the notice should have been sent by
G.E.R.E. to the address shown in the authentic tax records of the County; that there is no
dispute that G.E.R.E. prepared and sent Summers a notice on December 29, 1995 to Sesser,
Illinois; and, that at the time that G.E.R.E. prepared and sent its notice to Summers, she
resided in Christopher, Illinois. (Reply at 2-3.) C.O.A.L. alleges that at the time G.E.R.E.
prepared and sent its official notices, it took Summers’ Sesser, Illinois, address from the 1993
county collector’s records kept in the Treasurer’s office, not the Treasurer’s actual records.
(Reply at 3.) C.O.AL. argues that “[e]ven assuming that G.E.R.E. is correct that the
Treasurer’s records are the authentic tax records of the county, at the time G.E.R.E. prepared
and sent its official notices the current ‘authentic tax records of the County’ had shown
Summers’ correct address as Christopher, Illinois, since July, 1995.” (Reply at 3.)
Furthermore, C.O.A.L. states that the County Treasurer mailed her tax bill to Christopher, not
Sesser, more than four months before G.E.R.E. obtained the addresses for mailing notices.
(Reply at 3-4.) Thus, C.O.A.L. asserts, G.E.R.E. failed to give Summers the notice required
under the statute. (Reply at 4.) In a footnote on page 4 of its reply, C.O.A.L. argues that
neither case cited by G.E.R.E. would serve to relieve it from this obligation. (Reply at 4.)
C.O.A.L. states that even if the Treasurer’s records are the authentic tax records for the
County pursuant to DiMaggio G.E.R.E. failed to use the most current version as shown by the
fact that Mrs. Summers received her tax bills in 1995 from the Treasurers office prior to
G.E.R.E.’s mailing its notices in December 1995. (Reply at 4.) C.O.A.L. argues that
C.O.A.L. decision has no precedential value and if it did it does not stand for the proposition
G.E.R.E. has argued. (Reply at 4.) Furthermore, C.O.A.L. states that the statements
presented by G.E.R.E. to support its proposition are not supported by the record. (Reply at
4.)
In reply to G.E.R.E.’s second argument, that petitioners did not establish that Mrs.
Summers’ property was within 250 ft., C.O.A.L. states that “[w]e know that the land is within
250 feet because of the information contained in G.E.R.E.’s application which identified it as
such.” (Reply at 5.) C.O.A.L. argues that the testimony of William Walker, who has lived
7
on or nearby the land his entire life, establishes that Mrs. Summers’ property was within 250
feet of the property line. (Reply at 5.) C.O.A.L. asserts that “G.E.R.E.’s efforts to distance
itself from this problem by filing affidavits and making arguments in its brief hardly discount
the effect of Mr. Walker’s uncontroverted testimony” and that “[t]his is a very simple issue:
as a person owning real property within 250 feet of the G.E.R.E. lot line Summers should
have received official notice pursuant to the statute”. (Reply at 5.)
Board Discussion
The issue of what constitutes the “authentic tax records” and notice has been before the
Board and the courts on several occasions. Section 39.2(b) of the Act states in pertinent part:
No later than 14 days prior to a request for location approval the applicant shall
cause written notice of such request to be served *** on the owners of all
property *** within 250 feet in each direction of the lot line of the subject
property, said owners being such persons or entities which appear from the
authentic tax records of the County in which the facility is to be located***
Section 39.2(b) requires that applicants for siting approval use the "authentic tax records" to
determine the owners to whom notice must be sent. (Bishop v. PCB (5th Dist. 1992), 601
N.E.2d 310.) In Bishop, the appellate court addressed the issue of what are "authentic tax
records". (Id. at 311-15.) The applicants argued that the "authentic tax records" were those
maintained by the county treasurer, and the citizens group opposed to siting argued that the
"authentic tax records" were those maintained by the county clerk. (Id. at 311.) The record
contained testimony establishing that the offices of the county clerk, assessor, and treasurer all
play a role in the collection and record-keeping function of the taxing process. (Id. at 315.)
Consequently, the court distinguished Bishop from a Board case (DiMaggio) where the county
clerk testified that the county clerk's office maintained the "authentic tax records." (Id. at
315.) In construing Section 39.2(b) of the Act, the court noted that Section 39.2(b) does not
define owners as those persons appearing from the county clerk's records or as those available
from the most up-to-date record. (Id. at 315) "Generally, as long as notice is in compliance
with the statute and places those potentially interested persons on inquiry, it is sufficient to
confer jurisdiction...." (Id. at 315.) Therefore, the court held that the authentic tax records in
Bishop included the records maintained by the treasurer's office. (Id. at 315.)
In DiMaggio, petitioners argued that a property owner was entitled to service of notice
because he was an owner within 250 ft. of the proposed site, and his identity was ascertainable
from the county's authentic tax records. (Id. at 7.) Petitioner defined those records as those
which "include, but are not limited to, those records which are required or allowed to be kept
by the Revenue Act of l939." (Id. at 7-8.) Citing to the Appellate Court, First District,
(Katz v. City of Chicago, l77 Ill.App.3d 305, 532 N.E.2d 322 (First District, l988), which
held that an interpretation of a statute or ordinance made by the agency or body charged with
administering the statute constitutes an informed source of guidance for ascertaining the intent
of the lawmaking body, the Board found persuasive that fact that at hearing the county clerk
testified that the county clerk’s office maintains the authentic tax records. (Id. at 8.) The
8
Board found that petitioners “assertion that additional records should be searched is not in
keeping with the straight-forward, statutory directive concerning notice” and that “[t]he statute
does not require searches of records from the treasurer's and assessor's offices, but, rather, the
authentic tax records which, as noted, are held by the county clerk.” (Id. at 8-9.) The Board
held that petitioners had not demonstrated that the applicant failed to notify persons or entities
which appear from the authentic tax records of the county as required by Section 39.2 of the
Act. (Id. at 8-9.)
In Wabash and Lawrence Counties Taxpayers and Water Drinkers Association v. The
County of Wabash and K/C Reclamation, Inc., (May 25 1989) PCB 88-110, the Board stated:
the phrase ‘owners being such persons or entities which appear from the
authentic tax record of the County’ as being the decisive language in
determining whether “owners of all property” were properly notified under
39.2(b). The meaning of this language is clear. The language gives the
applicant, the county board and the reviewing bodies a clear standard to
determine which parties must be notified. The “authentic tax records of the
County” include the names or titles and addresses of the purported property
owners. If the applicant has sent proper notice to the owners listed on the tax
records he has complied with the requirements of 39.2(b).
In the matter of the property owned by the Trimble heirs, the applicant had the
notice of hearing sent to John Trimble, who receives the tax statement (R.3 at
22), at the address listed in the authentic tax records of the County. This notice
complies with the requirements of 39.2(b), even though all of the heirs were not
sent personal notice, because notice was given to the “owners... which appear
from the authentic tax records of the County” as required. (Id. at 4.)
In this case the County, in the ordinance granting siting, stated that it had jurisdiction
and that the “authentic tax records” of Perry County are maintained by the Perry County
Treasurer. Mr. Hill, the County Treasurer, submitted an affidavit as a public comment stating
that his office maintained the official tax records for the County. (C-61A.) The parties agree
that G.E.R.E. sent the notices on December 29, 1995. At the hearing before the Board Mr.
Hill testified that the 1993 book for the 1994 taxes was printed on January 4, 1995 and the
1994 book for taxes payable in 1995 was printed on January 17, 1996. (Tr. at 15-16.)
Furthermore, Mr. Hill stated in his affidavit that G.E.R.E.’s exhibit #9 (the 1993 book) in the
proceeding before the County is a true and exact copy of the records that existed at the
Treasurers office on December 29, 1995. (C-61A.)
We find, for the same reasons stated in DiMaggio and Wabash, that in this case the
“authentic tax records” are held by the County’s Treasurer as determined by the County and
G.E.R.E. was not required to review all records held by the County. Therefore, G.E.R.E was
required to use the current records from the Treasurer’s office. Petitioners argument that these
could not be the most accurate or current “authentic tax records” because Mrs. Summers
received her taxes for 1994 in July 1995 fails, because petitioner did not demonstrate that those
9
taxes were generated by the 1993 book which was represented by the County Treasurer’s
Office as the “authentic tax records”. In fact, as testified to by Mr. Hill, the list of 1994 taxes
payable in 1995 are computer-generated, and the information in his office’s computers was not
printed until January 17, 1996 and there was no evidence that the information contained on the
Treasurer’s computers was available to G.E.R.E. (Tr. at 9-10.)
Therefore, we find that G.E.R.E. complied with Section 39.2(b) of the Act by relying
on the County Treasurer’s office 1993 book when mailing notices. G.E.R.E. was not required
to search through all of the County’s records to determine if in fact it had the most current
authentic tax records once the County represented that the 1993 book was the current authentic
tax records. Thus we find that G.E.R.E.’s failure to notify Mrs. Summers did not divest the
County of jurisdiction to grant or deny local siting.
Fundamental Fairness
Arguments
Citing to City of Rockford v. Winnebago, 186 Ill. App.3d 303, 313, 542 NE2d 423,
134 Ill. Dec 245 (1989) petitioners state that the Board and the courts of Illinois have held that
ex
parte
contacts between local decisionmakers and the applicant are fundamentally unfair.
(Brief at 12-13.) C.O.A.L. argues that the evidence demonstrates that G.E.R.E. and the
County engaged in
ex
parte
contacts and communications with each other through their
respective attorneys. (Brief at 13.) C.O.A.L. asserts that this was done outside the public
process, no record was kept of the contacts, and no report was ever given to the public of such
communications and contacts. (Brief at 13.)
C.O.A.L. cites as evidence of the
ex
parte
contacts that the public record indicates that
1) the only discussions which the County undertook with respect to the G.E.R.E. application
are identified in the minutes of eleven regular sessions and two executive sessions, and 2)
without further discussion or debate, on July 9, 1996, the County unanimously adopted an
ordinance granting G.E.R.E.’s application with conditions. (Brief at 14, Tr. 78-84, Pet. Exh.
10.) C.O.A.L. maintains that “[i]n that ordinance the County imposed certain highly technical
and complex conditions upon G.E.R.E., including, but not limited to: performing a feasibility
study of increasing a roadway, raising the berm to fifteen (15) feet above the 100 year flood
plain, developing a geotechnical study, performing measures to secure the slope stability on
the west edge of the fill, taking steps to address the compressibility of subsurface materials,
locating potential aerial photographs, changing to monthly the required water sampling on the
site, requiring that a vehicles on exiting the site be cleaned before leaving, and, that a clause
restricting transferability without approval of the County.” (Brief at 14.) C.O.A.L. claims
that “Chairperson Karnes admitted that he and the other members of the county board had
made ‘many demands’ which G.E.R.E. met and ‘asked many questions’ which G.E.R.E.
answered.” (Brief at 14-15, Tr. at 57-58.) C.O.A.L. asserts that none of these demands or
questions or G.E.R.E. responses were asked at the eleven regular meetings or two executive
sessions, but , that they were instead done through their respective attorneys and outside of the
public record. (Brief at 15, Tr. at 59-61.)
10
Furthermore, C.O.A.L., citing to Southwest Energy Corp. v. Illinois Pollution Control
Board, 275 Ill. App. 3d 84, 211 Ill. Dec. 401, argues that these contacts and communications
between the County and G.E.R.E. did not afford the petitioners, or public at-large, access to
the same information as to the County causing those contacts to be
ex
parte
. (Brief at 15.)
C.O.A.L. argues that as a result of the “ex parte contacts and communications which did not
afford the petitioners an opportunity to participate, nor did it result in the creation of a reliable
record sufficient to form the basis of an appeal, these proceedings were fundamentally unfair
and therefore pursuant to Section 40.1 of the Act the County’s decision should be reversed.”
(Brief at 15-16.)
The County argues that “[t]he contact complained of by the Petitioners between
G.E.R.E. and the County, through their respective legal representatives, did not and does not
now render the application process fundamentally unfair.” (Cty. Resp. at 2.) The County
asserts “[t]hat all contacts between G.E.R.E. and the County prior to the close of the 30 day
comment period regarded procedural matters and conditions,” and “[s]imilar contacts
regarding procedure were made between the County and the Petitioners”. (Cty. Resp. at 2.)
The County maintains that all contact was between the parties’ attorneys and not the parties
themselves. (Cty. Resp. at 2.) The County claims that “[u]pon the close of the 30 day
comment period, the Petitioner had no “right” to participate.” (Cty. Resp. at 2.)
The County states that, in City of Rockford, which petitioners cite as authority, the
Court remanded the matter to the local review board to develop a record for review as to the
substance of the
ex
parte
contacts. (Cty Resp. at 3.) The County asserts that the record has
already been established as to the
ex
parte
contacts and that the petitioners are no longer
unaware of the substance of those contacts. (Cty Resp. at 3.) The County alleges that
petitioners have witnessed what they allege to be “discussions, debates and negotiations. . . . .
.” (Cty. Resp. at 3.)
The County contends that “[b]ecause there were no discussions and there were no
negotiations between the County and G.E.R.E., matters which could conceivably lead to
fundamental unfairness, the Petitioners are left to complain only that they did not “witness”
the contacts” and “[a] public record has been made on the contact” on review before the
Board. (Cty. Resp. at 3.) The County then concludes that “the only question is whether the
substance of the contact was fundamentally unfair, not whether the appropriate record was
initially made nor that contact was made.” (Cty Resp. at 3.)
The County asserts that the petitioner “developed the record for appeal on the
ex
parte
issue at the Review Hearing.” (Cty Resp. at 4.) The County states that petitioners questioned
two of the three members of the Perry County Board of Commissioners which “disclosed that
the County and G.E.R.E., through their respective legal counsel, engaged in contact after the
close of the 30 day comment period.” (Cty Resp. at 4.) The County claims “[t]hat contact
involved ONLY matters regarding the conditions to be added IF the landfill application was
approved.” (Cty. Resp. at 4.) Furthermore the County states “[h]owever, G.E.R.E. had no
knowledge what the final conditions were, only that there would be conditions if the
11
application was approved.” (Cty Resp. at 4.) The County argues that it exercised its right to
impose conditions upon G.E.R.E. and that there was no contact between the County and
G.E.R.E. regarding jurisdiction, citing criteria, or any other matter that might render the
process fundamentally unfair. (Cty Resp. at 4.)
G.E.R.E. argues that it and the County did not engage in
ex
parte
communications
concerning the siting criteria or conditions of siting. (G.E.R.E. Resp. at 7.) G.E.R.E. asserts
that the County was very careful throughout the siting proceedings to avoid any contact and
that the only contact between the two occurred between the attorneys for each. (G.E.R.E.
Resp. at 7.) G.E.R.E. states, to rebut petitioners’ contention that there must have been contact
between the two because of the conditions the County incorporated into its ordinance, that
“Mr. Danny Wildermuth, Perry County Commissioner (sic) testified at the hearing that the
conditions came from the County’s expert, Mr. Rutasel.” (G.E.R.E. Resp. at 7, Tr at 48.)
In response to C.O.A.L.’s allegations that communications occurred between the two
based on the statements of Chairperson Karnes, G.E.R.E. notes that those statements were
made to the media after a Board meeting. (G.E.R.E. Resp. at 7-8.) G.E.R.E. states that
Chairperson Karnes testified that the questions and answers occurred at Board meetings and
hearings and that the demands and questions were relayed to the County’s attorney. (G.E.R.E.
Resp. at 8, Tr. at 57-58.) Furthermore G.E.R.E. asserts that Chairperson Karnes also stated
that he presumed the County’s attorney relayed the questions and demands to G.E.R.E.’s
attorney, but that he was not sure. (G.E.R.E. Resp. at 8, Tr. at 59.)
G.E.R.E. states that “[i]t is apparent that the County Board had certain concerns and
questions after all the public hearings, public comment and written material from experts were
provided to them”, and as testified to by Mr. Karnes and Mr. Wildermuth, “those concerns
and questions were relayed to their attorney who came back with the answers or solutions in
the form of conditions.” (G.E.R.E. Resp. at 8.) G.E.R.E. maintains that the conditions came
from the County’s expert, and were incorporated into the resolution approving its application
prepared by the County’s attorney. (G.E.R.E. Resp. at 8.) To conclude, G.E.R.E. argues
that the actions of the County were logical and fair and that neither it nor petitioners had an
opportunity to participate. (G.E.R.E. Resp. at 8.) In support of the contention that neither
the petitioners nor G.E.R.E. had an opportunity to participate, G.E.R.E. states that Paragraph
C of the County’s resolution states as follows: “[t]hat pursuant to advice by the expert hired by
the County to consult on this application, GERE SHALL INCLUDE in its final design plan the
following minimum scope of study.” (C-278)
Board Discussion
The Board was recently confronted with a similar
ex
parte
situation in Residents
Against a Polluted Environment and The Edmund B. Thorton Foundation v. County of LaSalle
and Landcomp Corporation, (September 19, 1996), PCB 96-243. There the Board
summarized the relevant law as follows:
12
In E & E Hauling Inc. v. Pollution Control Board, 451 N.E.2d at 564-566, the
appellate court found that the local decision making process must be viewed as
an adjudicatory, rather than a legislative process. This requires the decision
maker to be impartial, subject to the exception found at 39.2(d) of the Act.
Contacts which could unfairly influence the decision maker are improper in
adjudicatory proceedings. The decision maker in this case, the county board,
must not engage in the types of contacts normally allowed when it acts as a
legislative body. The impropriety of
ex parte
contacts in administrative
adjudication is well established. (Id. at 571.)
Ex parte
contacts are condemned
because they: (1) violate statutory requirements of public hearings, and
concomitant right of the public to participate in the hearings, (2) may frustrate
judicial review of agency decisions, and (3) may violate due process and
fundamental fairness rights to a hearing. (Id.) Therefore, fundamental fairness
requires that the local hearing process comport with adjudicative standards of
due process.
In making the determination whether improper
ex parte
contacts rendered the
proceedings fundamentally unfair, we must first determine whether improper
ex
parte
contacts occurred. An
ex parte
contact is one which takes place without
notice and outside the record between one in a decision making role and the
party before it. (Town of Ottawa v. Pollution Control Board, 129 Ill.App.3d
121, 126, 472 N.E.2d 150; (3d Dist. 1984).) In Waste Management, 175
Ill.App.3d 1023, 530 N.E.2d 682, the court stated that this definition was
inclusive rather than exclusive. (Id. at 1043.) Relying on Black’s Law
Dictionary, the court stated that
ex parte
contacts include “something done for,
in behalf of, or on the application of, one party only.” (Id. at 1042.) The court
further stated that “
ex parte
proceedings are proceeding brought for the benefit
of one party only and without notice to the other party.” (Id. (citations
omitted).) Applying these definitions, the court determined that contacts
between county board members and constituents, which took place outside the
presence of the applicant, and which were clearly in support of the position held
by various objectors who were parties to the siting proceeding, constituted
ex
parte
contacts. (Id.) In the context of a siting proceeding, then, an
ex parte
contact is a contact between the siting authority and a party with an interest in
the proceeding without notice to other parties to the proceeding.
The mere occurrence of
ex parte
contacts does not, by itself, mandate automatic
reversal. It must be shown that the
ex parte
contacts caused some harm to the
complaining party. In Fairview Area Citizens Taskforce v. Pollution Control
Board, 198 Ill.App.3d 541, 555 N.E.2d 1178, 144 Ill.Dec. 659 (3d Dist. 1990)
(hereinafter, FACT), the court stated:
[
E
]
x parte
communications from the public to their elected
representatives are perhaps inevitable given a county board
member’s perceived legislative position, albeit in these
circumstances, they act in an adjudicative role as well. Thus
13
although personal
ex parte
communications to county board
members in their adjudicative role are improper, there must be a
showing that the complaining party suffered prejudice from these
contacts.
(FACT, 198 Ill.App.3d at 549.)
As stated in E & E Hauling, 116 Ill.App.3d 586, 451 N.E.2d 555, when
determining whether
ex parte
contacts warrant reversal:
A court must consider whether, as a result of improper
ex parte
communications, the agency’s decision making process was
irrevocably tainted so as to make the ultimate judgment of the
agency unfair, either to an innocent party or to the public interest
that the agency was obliged to protect. In making this
determination, a number of considerations may be relevant: the
gravity of the
ex parte
communications; whether the contacts may
have influenced the agency’s ultimate decision; whether the party
making the improper contacts benefited from the agency’s
ultimate decision; whether the contents of the communications
were unknown to opposing parties, who therefore had no
opportunity to respond; and whether vacation of the agency’s
decision and remand for new proceedings would serve a useful
purpose.
(116 Ill.App.3d at 606-607,
citing
PATCO v. Federal Labor Authority, 685 F.2d 547,
564-65 (D.C. Cir. 1982).)
Here, C.O.A.L. asserts that contacts made through the County’s and G.E.R.E.’s
attorneys rise to the level of improper
ex parte
contacts. In response, the County asserts that
the contacts were those only of the attorneys and not the parties themselves and that the record
of those contacts made before the Board cures any improper contacts. G.E.R.E. claims that
there were no contacts by the parties, that if there was any contact it was through the attorneys
and that the record does not demonstrate that they actually occurred, and that the conditions to
approval were suggested by the County’s engineer.
As stated above,
ex parte
contacts include contacts which take place without notice and
outside the record between one in a decision making role and the party before it (Town of
Ottawa, 129 Ill.App.3d at 126), and include “something done for, in behalf of, or on the
application of, one party only.” (Waste Management, 175 Ill.App.3d at 1042). As discussed
in greater detail below, we find that the contacts between the County’s and G.E.R.E.’s
attorneys were improper
ex parte
contacts.
Initially, we must address whether it was possible for the attorneys to engage in
improper
ex parte
contacts. The attorney for the County is an employee of the county, acted
on behalf of the county at hearing, and was responsible for advising the board members on the
14
merits of the application. Therefore, while the attorney does not have a vote, to the extent he
was acting on behalf of the county board, we find that it is possible for him to have had
ex
parte
contacts. The county board was engaging in adjudication in hearing and deciding on
G.E.R.E.’s siting application. Furthermore, this proceeding must provide fairness and the
appearance of fairness. (E & E Hauling, 116 Ill.App.3d at 598.) Accordingly, the attorney
for the County cannot lawfully acquire information beyond that in the record or from outside
the public hearing process, any more than a judicial clerk could acquire information directly or
indirectly from a party before a court. Indeed, the County cannot do indirectly (contact
G.E.R.E. through its attorney) what cannot do directly (contact G.E.R.E. directly).
Having determined that it is possible for the County’s attorney to have engaged in
ex
parte
contacts, we must determine whether such contacts took place. While we agree with
G.E.R.E that there is no evidence that information actually resulted in the inclusion of the
specific conditions contained in the County’s ordinance, the County, on page four of its post-
hearing brief, admits that there were contacts made. The testimony of Chairperson Karnes
shows that the County requested its attorney to contact G.E.R.E. (whether the applicant itself
or its attorney), the record demonstrates that contact was made after the close of the 30-day
public comment period, and that those contacts involved the placement of conditions on the
County’s approval. These discussions took place outside the record, and provided opponents
with no opportunity to cross-examine or question any conclusions reached. We therefore find
that the attorney for the County was engaging in
ex parte
contacts. We must now determine
whether these contacts resulted in any prejudice.
Applying the criteria set forth in E & E Hauling, 116 Ill.App.3d 586, 451 N.E.2d 555,
we find that the
ex parte
contacts irrevocably tainted the hearing process. The fact that the
County had questions unanswered after the completion of the record tends to indicate that
G.E.R.E. may not have demonstrated that the statutory criteria were met at the close of the
record. While the referred-to contacts are characterized as concerning “procedural” matters
and/or conditions, the County apparently felt it necessary to have G.E.R.E. answer those
question prior to making its substantive decision on the application. This becomes especially
clear when considering the added conditions which directed G.E.R.E. to: perform a feasibility
study of increasing a roadway, raise the berm to fifteen (15) feet above the 100 year flood
plain, develop a geotechnical study, perform measures to secure the slope stability on the west
edge of the fill, take steps to address the compressibility of subsurface materials, perform
monthly water sampling on the site and require that vehicles exiting the site be cleaned before
leaving; all of these concern the criteria of Section 39.2 of the Act.
We find that the contacts have affected the decision of the County board. The failure
to include the questions in the record by asking the questions at the public hearing improperly
limited public participation, thereby thwarting the goals of the public hearing process. These
discussions could have affected the ultimate decision in this case, since the County felt the
need to ask the questions prior to voting on the applications. The exchanges which took place
were not available to opponents of the facility or their experts, and this eliminated their ability
to challenge or respond to any conclusions reached. As a result of these
ex parte
contacts the
Board finds the siting process was fundamentally unfair.
15
CONCLUSION
We find the siting proceedings in this matter to be fundamentally unfair. We find that
ex parte
contacts occurred between the County and G.E.R.E. (the siting applicant) while the
application was pending, and these
ex parte
contacts were prejudicial to petitioners. Further,
we find these
ex parte
contacts met the test established in E & E Hauling, 116 Ill. App. 3d
586, including the final consideration: whether vacation of the agency’s decision and remand
for new proceedings would serve a useful purpose. We find that the County board’s decision
must be remanded so that the public can learn the content of the discussions between the
County and G.E.R.E., and have an opportunity to question and respond to this information.
The Board vacates and remands this proceeding to the County for further hearings consistent
with the Board’s findings herein and summarized below. We find that remand of this
proceeding is the proper course of action (
See
Hediger v. D & L Landfill, (December 20,
1990) 117 PCB 121.). Furthermore we find it appropriate to close this docket. After the
County renders a new decision based on the record petitioners may appeal that decision to the
Board pursuant to Section 40.1 of the Act.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
The July 9, 1996 decision of the Perry County Commissioners (county board granting
siting approval) to approve G.E.R.E.’s application is hereby vacated and remanded because
the proceeding below was fundamentally unfair. At a minimum, the County Board shall:
1.
Conduct one or more public hearings to present the questions asked by the
County and the answers provided or any discussions that took place between
them, and allow a public comment period of at least 30 days. Provide public
notice of the hearing in accordance with the requirements of Section 39.2(d) of
the Environmental Protection Act (415 ILCS 5/39.5). At hearing, allow the
public to respond to the questions of the County and G.E.R.E.’s responses those
questions.
2.
The County board shall render a new decision based upon the record in this case
which will include the information acquired during the public hearing and
comment period.
3.
The County board shall vote and render its decision no later than 120 days after
receipt of this order.
IT IS SO ORDERED.
16
Board member J. Theodore Meyer dissents.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the _____ day of ___________, 1996, by a vote
of ______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board