ILLINOIS POLLUTION CONTROL BOARD

January 11, 1995

BEARDSTOWN AREA

CITIZENS

FOR A BETTER ENVIRONMENT,

Petitioner,

PCB 94-98

V.

)

(Siting Review)

CITY OF BEARDSTOWN AND

SOUTHWEST ENERGY CORPORATION, )

Respondent.

CONCURRING OPINION (by C.A. Manning):

On the basis of fundamental fairness, the Board today

reverses the siting approval granted by the City of Beardstown for

a municipal solid waste incinerator. I agree with the outcome

reached by my colleagues and thus join the majority in reversing

the City’s siting decision; however, I concur to emphasize the

statutory framework and caselaw precedent which compels this

result.

Initially, I wish to stress that I find nothing improper in

the Beardstown City Council making a site visit to Semass, the

model upon which the proposed incinerator was based. In my

opinion, the City Council is comprised of elected officials who

not only are statutorily charged with granting or denying siting

approval (415 ILCS 5/39.2), but are also charged by their

constituents with making a business decision in the community’s

best interest. It can only be good business sense and can only

lead to better public policy, if the decision makers are allowed

to view the incinerator model first hand. We, at the Board, may

make such a site visit in order to determine a permit appeal or to

decide a private enforcement action, and it would be permissible

as long as both sides have legal representation at the site.

However, in this case, as in Concerned Citizens for A Better

Environment v. City of Havana and Southwest Enercry Corporation

(May 19, 1994) PCB 94-44, we are limited by bright line precedent

providing that once the application for siting approval is filed,

the process pending before the City Council is an adjudicatory

proceeding rather than one that is legislative. (See E&E Hauling

v. IPCB (2nd 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.) Thus,

because the City Council transforms from a legislative body of

elected officials into a panel of judges, a fact-finding trip such

as the site visit the City Council took to Semass, must conform to

the same notions of fundamental fairness as any other procedure

used by an adjudicatory body in reaching a decision. (415 ILCS

5/40.1.)

---

2

I agree with my colleagues that the manner in which the

Semass visit was conducted did not provide the public with a

fundamentally fair proceeding to review the merits of the

incinerator proposal. I reach this conclusion because the City

Council wholly failed to cure the ex

parte

contacts that occurred

while the Council Members were at Semass, and additionally,

because I believe that the manner in which the trip was funded was

improper. While I am not as persuaded by the importance of the

public not being invited or present at the site visit itself as

are my colleagues, I do agree that the reporter’s presence is not

enough to make the visit fundamentally fair. We review the

procedures employed by the City Council in making a decision and

not the actions of the press, and in this case with regard to the

Semass visit, the Council Members failed to offer their “findings”

and facts upon which they were based into the public record and

importantly, failed to subject themselves to cross examination

concerning these findings. (415 ILCS 5/39.2 (d), (e) and 40.1 (a)

.)

Thus, the record, upon which the City Council’s siting decision is

to be solely based, altogether lacked information about the Semass

site visit.

Regarding the trip’s funding, when I apply the adjudicatory

standards with which the Board must review the City Council’s

procedures, I find that the City Council allowing the siting

applicant to directly fund the site visit does not provide for a

fundamentally fair procedure. In the siting process, the City

Council is statutorily authorized to assess a fee to cover the

necessary and reasonable costs incurred in the siting review

process (415 ILCS 5/39.2(k)) which could include costs of hearing,

transcribing, or if necessary, site-visits. I would advocate that

the siting authorities use this mechanism rather than allow the

applicant to directly fund the site visits. In this manner, an

adjudicatory body, such as the City Council is insulated from an

appearance of impropriety or bias which results when the applicant

directly picks up the bill for hotel rooms, dinners and other

expenses.

For the above stated reasons, I c cur.

~

C.A. Manning

Chairman

I, Dorothy M. Gunn, Clerk of the Illinois ollution Control

Board, hereby certify that the above concurring opinion was filed

on the

/~-~‘

day of

_________________,

95.

Dorothy M~tGunn, Clerk

Illinois ~‘ollution Control Board