ILLINOIS POLLUTION CONTROL

BOARD

January 11,

1995

BEARDSTOWN

AREA

CITIZENS

)

FOR

BETTER

ENVIRONMENT,

)

Petitioner,

)

 PCB 94—98

v.

)

 (Siting Review)

)

CITY

BEARDSTOWN

AND

)

SOUTHWEST

ENERGY

CORPORATION,

)

Respondent.

GEORGE MUELLER,

 of HOFFMAN, MUELLER, CREEDON

 & TWOHEY, and RICCA

SLONE APPEARED ON BEHALF OF THE PETITIONERS;

GEORGE McCLURE APPEARED ON

BEHALF

OF THE CITY OF

BEARDSTOWN;

and

MARK D.

 CHUTKOW, of SIDLEY

 & AUSTIN, APPEARED ON BEHALF OF

SOUTHWEST ENERGY CORPORATION.

OPINION

AND

ORDER OF THE BOARD

 (by 3. Theodore Meyer):

This matter is before the Board on a petition for review,

filed by Beardstown Area Citizens for a Better Environment

(petitioners) on March 25,

 1994.

 Petitioners seek review,

pursuant to Section 40.1 of the Environmental Protection Act

(Act)

 (415 ILCS 5/40.1

 (1992)),

 of the City of Beardstown’s

(City) February 22,

 1994 decision granting siting approval to

 Southwest Energy Corporation (Southwest)

 for a municipal solid

waste incinerator.

 The Board held public hearings on the

petition on October 19 and 20,

 1994,

 in Hampshire.

 Members of

the public attended that hearing.

The Board’s responsibility in this matter arises from

Section 40.1 of the Act.

 The Board is charged, by the Act, with

a broad range of adjudicatory duties.

 Among these is

adjudication of contested decisions made pursuant to the local

siting provision for new regional pollution control facilities,

set forth in Section 39.2 of the Act.

 More generally, the

Board’s functions are based on the series of checks and balances

integral to Illinois’ environmental system:

 the Board has

responsibility for rulemaking and principal adjudicatory

functions, while the Board’s sister agency, the Illinois

Environmental

Protection

Agency

(Agency)

responsible

for

carrying out the principal administrative duties,

 inspections,

and permitting.

 The Agency does not have a statutorily-

prescribed role in the local siting approval process under

Sections 39.2 and 40.1, but makes decisions on permit

applications submitted if local siting approval is granted and

2

upheld.

BACKGROUND

Southwest filed an application for siting approval with the

 City on September 17,

 1993.

 (Cl.)’

 Southwest is a wholly owned

subsidiary of Kirby-Coffman,

 Inc.

 John Kirby is president of

both Southwest and Kirby-Coffman.

 (Tr. at 20-22.)

The

application sought siting approval for a municipal waste

incinerator.

 The proposed facility would use processed fuel

technology to recover electrical energy and marketable materials

from municipal solid waste.

 (C3.)

 The City held public hearings

on that application on December 21 and 22,

 1993.

 On February 22,

1994, the City granted siting approval.

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 City found that all of the criteria

have been met, and granted siting approval.

 (C2669-C2676.)

When reviewing a local decision on the criteria, this 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.E2d

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 at 562.)

 In this case, petitioners have raised challenges

to the fundamental fairness of the local proceeding,

 as well as

challenges to the City’s decisions on seven of the criteria.

1

 “Cxxx” will be used to refer to the City’s record of

the siting proceeding,

 and “Tr. x” will be used to denote the

transcript of the hearing held by this Board on October 19 and

20,

 1994.

3

FUNDAMENTAL

FAIRNESS

Section 40.1 of the Act requires the Board to review the

proceedings before the local decisionmaker to assure fundamental

fairness.

 In E

 & E Hauling, the appellate court found that

although citizens before a local decisionmaker are not entitled

to a fair hearing by constitutional guarantees of due process,

procedures at the local level must comport with due process

standards of fundamental fairness.

 The court held that standards

of adjudicative due process must be applied.

 (E & E Hauling, 451

N.E.2d at 564; see also Fairview Area Citizens Task Force

 (FACT)

v. Pollution Control Board

 (3d Dist.

 1990),

 144 Ill. Dec. 659,

555 N.E.2d 1178.) Due process requires that parties have an

opportunity to cross—examine witnesses,

 but that requirement is

not without limits.

 Due process requirements are determined by

balancing the weight of the individual’s interest against

society’s interest in effective and efficient governmental

operation.

 (Waste Management of Illinois Inc.

 v. Pollution

Control Board

 (2d Dist.

 1988),

 175 Ill.App.3d 1023,

 530 N.E.2d

682,

 693.)

 The manner in which the hearing is conducted, the

opportunity to be heard, the existence of ex

 parte

 contacts,

prejudgment of adjudicative facts, and the introduction of

evidence are important, but not rigid,

 elements in assessing

fundamental fairness.

 (Hedi~erv. D & L Landfill.

 Inc.

 (December

20,

 1990), PCB 90—163.)

Petitioners contend that the proceedings were fundamentally

unfair in five ways:

 1) several members of the city council and

the mayor took a trip to another incinerator at Southwest’s

expense, but no members of the public were invited on the trip;

2) the local economic development director appointed a “shadow

cabinet” of local residents who worked outside the public record

and presented a report on the last day of the public comment

period which affected the city council’s decision;

3)

 local

officials interfered with petitioners’ efforts to disseminate

information on the project, failed to place material submitted by

petitioner into the public record, and failed to present the full

record of public comment to the city council;

 4) several members

of the city council and the mayor engaged in improper ex

 parte

contacts and improperly prejudged the application; and 5) the

applicant (Southwest)

 is a shell corporation and not the real

party in interest, so that neither the public nor the

decisionmakers had information about the corporation’s operating

history.

Trip to View Incinerator

Petitioners first argue that the proceedings were

fundamentally unfair because several members of the city council

and the mayor took a trip to Massachusetts, at Southwest’s

expense, to view the SEMASS incinerator, which is the model for

the proposed Beardstown facility.

 Petitioners contend that

4

because no members of the public were invited on the trip, there

was no way to rebut the impressions made upon the decisionmakers

during the trip.

On October 22-24,

 19942,

 the mayor of Beardstown and his

wife, six members of the city council, the Beardstown economic

development director, and a local reporter visited the SEMASS

incinerator in Rochester, Massachusetts.

 (Tr. at 199,

 304,

 479.)

The SEMASS facility is operated by Energy Answers,

 Inc., with

which Kirby-Coffman has a joint development agreement.

 (Tr. at

24,

 105.)

 The trip,

 including airline tickets,

 hotels, meals,

and local transportation, was paid for by Southwest,

 Energy

Answers, and West Suburban Recycling and Energy Center.3

The

group toured the SEMASS facility, and went sightseeing in the

area.

 (Tr. at 312-313, 368.)

 One council member testified at

the Board’s hearing that he discussed his impressions of SEMASS

with an official from Southwest (Tr. at 314),

 and another council

member testified that the trip to SEMASS “helped a lot” in

reaching a decision on the application, and that he was impressed

(Tr. at 349).

Petitioners contend that this trip constituted improper

ex

parte

 communications between the applicant and the council

members.

 Petitioners maintain that they have been prejudiced by

 those ex

 parte

 contacts, by being unable to offset the council

members’ impressions of SEMASS since petitioners were not aware

of the content of the communications.

 Petitioners argue that the

record demonstrates a profound bias by the mayor and supporting

council members.

 Finally, petitioners cite to the Board’s

decision in Concerned Citizens for a Better Environment v. City

of Havana (May 19,

 1994), PCB 94-44, stating that the Board found

under almost identical facts that a trip to observe SEMASS led to

a fundamentally unfair proceeding.

In response, Southwest argues that the trip was not an

impermissible ex

 parte

 contact, but a necessary component of the

city council’s investigation of the application.

 Southwest notes

that the Act does require local decisionmakers to conduct

hearings coniporting with fundamental fairness, but argues that

the Act does not expressly restrict the decisiomuakers’ inquiry

to that normally associated with judicial officers.

 Southwest

states that reversing the City’s decision, based on the trip,

would stifle the instincts of local decisioninakers who seek to do

2

 That date is after the application was filed,

on

September 17,

 1994, and before the public hearings were held on

December 21-22,

 1994.

John Kirby is also president of West Suburban.

 (Tr. at

28.)

5

what is best for their communities.

 Southwest also contends that

the tour of SEMASS was not a lobbying effort, but a fact

gathering trip, that the local community was kept informed of the

results of the tour through coverage by the local press, and that

it would be infeasible to invite all interested parties to tour

SEMASS.

The Board first notes that a party can, by inaction in the

proceeding before the local decisionmaker, waive its right to

raise the issue of ex

 parte

 contacts.

 (FACT,

 555 N.E.

 2d at

1182-1183.)

 However,

 in this proceeding petitioners did file,

just prior to the beginning of the hearings before the City,

a

motion to disqualify the council members.

 (C88-C91.)

 Thus,

petitioners have preserved their right to raise this issue on

appeal.

Based upon our decision in Havana, the Board finds that the

trip to the SEMASS plant, sponsored by Southwest, was improper.

As we stated in Havana,

 “the Board finds that the applicants’

sponsorship of and payment for a tour of a facility used as the

model for the proposed facility which included the council, but

not the public generally,

 led to a fundamentally unfair

proceeding.”

 (Havana, slip op. at 7.)

 The facts surrounding the

trip in this case are almost identical to those presented in

Havana, and the parties have not argued otherwise.

 Like Havana,

we find that petitioners were prejudiced by being unable to

appropriately address all the impressions formed by the council

members who participated in the tour.

 In sum, we find no reason

not to follow our earlier decision, and find that Southwest’s

sponsorship of, and payment for,

 a tour of the SEMASS facility

which excluded the general public rendered the proceedings

fundamentally unfair.

We reach this conclusion based upon appellate court

decisions finding that the local decisionmaking process must be

viewed as an adjudicatory, rather than a legislative, process.

(E

 & E Hauling, 451 N.E.2d at 564-566; Tate v. Macon County Board

(4th Dist.

 1989),

 188 Ill.App.3d 994, 544 N.E.2d 1176.)

 We agree

with Southwest that,

 in some circumstances, viewing a similar

facility could be a valuable part of a siting proceeding.

However,

 it is the particular circumstances in this case, with

the applicant sponsoring and paying for the trip after the filing

of the application for siting approval, and the fact that there

was no opportunity for the general public to participate in the

trip, which render the proceedings fundamentally unfair in this

case.

“Shadow Cabinet”

Petitioners next contend that the proceeding was

fundamentally unfair because the City’s economic development

director, June Conner, appointed a “shadow cabinet” to review

.6

incinerator proposals presented to the City.

 (Tr. at 177-178,

181-182.)

 This committee consisted of people from the community

with varying backgrounds, to assist Ms. Connor in assessing

incinerator proposals.

 (Tr.

 at 177,

 187-188.)

 Ms. Connor formed

the committee in May 1993

 (Tr. at 180), and did not ask

permission from the mayor or inform the city council

 (Tr.

 at 178,

188.)

 The committee was not an official committee of the city

council.

 (Tr.

 at 223.)

Petitioners argue that this committee worked without public

notice, outside the public record, and presented a report on the

final day of the public comment period.

 Petitioners maintain

that this report was partly incorporated into the city council’s

ordinance approving the siting application.

 Petitioners contend

that they were prejudiced by these actions, because they were

excluded from the process until its conclusion,

 and had no

opportunity to comment or offer rebutting evidence to the

committee’s report.

 Southwest did not specifically respond to

this argument in its brief.

The Board finds that neither the existence of this

committee, nor the actions taken by the committee, render the

local proceedings fundamentally unfair.

 The committee was not an

official committee formed by the city council4, and had no

special standing to make recommendations to the city council.

In

essence, this committee acted no differently than petitioners may

have acted:

 investigating the proposal by meeting with the

applicant and reviewing reports, and subsequently filing a report

and recommendations as public comment.

 While the filing of the

report on the last day of the public comment period does indeed

prevent any response or rebuttal,

 it is no different than any

other public comment which may have been filed on the final day.

The legislature did not provide for any rebuttal period when

establishing the 30 day public comment period in Section 39.2(c).

Although the city council may (or may not) have decided to

incorporate some of the committee’s recommendations in its

ordinance, petitioners fail to show why this is different than

the possible inclusion of recommendations made by other

commenters.

 In sum, we find no violation of fundamental fairness

by either the existence of this committee, nor by its actions

during the proceeding.

Interference and Incomplete Public Comments

Petitioners next argue that the proceeding was fundamentally

unfair because local officials interfered with petitioners’

We also note that the committee was formed in May 1993

to evaluate incinerator proposals, well before Southwest’s

application was filed with the City on September 17,

 1993.

7

efforts to disseminate information about their views on the

application,

 failed to place petitioners’ materials in the public

record, and failed to present the full record of public comment

to the city council to consider in its decision.

Petitioners state that on two occasions in December 1993,

petitioners attempted to distribute literature at the local

WalMart store,

 and that the assistant manager stated that the

flyers could be placed in the shoppers’ bags.

 (Tr. at 140,

 150-

151,

 410.)

 Petitioners contend that when city council member

Thomas Brewer learned of this, he reported the action to the

mayor

 (Tr. at 321-322), who then called Rhonda Roberts, WalMart’s

manager

 (Tr.

 141).

 Ms. Roberts testified that the mayor asked

why WalMart was taking a stand on the issue, and asked for the

name and number of the WalMart district manager.

 (Tr. at 141-

142.)

 The flyers were then removed from distribution at the

WalMart store.

 (Tr. at 142.)

 Petitioners allege that the

mayor’s conduct in contacting WalMart denied petitioners

fundamental fairness.

In response, Southwest contends that after speaking with the

mayor, Ms. Roberts realized that it violated store policy to

distribute literature on political issues, and so directed her

employees to stop distributing the literature.

 Southwest states

that none of the WalMart employees testified that the mayor or

Mr. Brewer asked them to stop distributing the material, and that

both men stated that they did not make such a request.

 (Tr. at

144,

 155,

 294, 331.)

 Thus, Southwest maintains that it is

unclear as to what “misconduct” petitioners complain of.

The Board finds no violation of fundamental fairness caused

by Mr. Brewer’s and the mayor’s communications with WalMart

regarding the flyers.

Any

activities that happened at WalMart

were not a part of the official local proceedings on the

application.

 Section 40.1 of the Act requires the Board to

consider the “fundamental fairness of the procedures used by the

local

 decisionmaker)

 in reaching its decision.”

 (415 ILCS

5/40.1

 (1992).)

 We fail to see how the issue of whether WalMart

allowed distribution of flyers could be considered part of the

procedures used by the local decisionmaker.

 (See also Daly v.

Village of Robbins (July

1,

 1993), PCB 93—52 and PCB 93—54

(cons.), slip op. at

7,

 10—12.)

Petitioners also contend that local officials failed to

place petitioners’ materials in the public record, and failed to

present the full record of public comment to the city council to

consider in its decision.

 (Tr. at 454.)

 Petitioners assert that

the mayor stated publicly that the record would be held open

until the city council voted in February (Tr. at 450-451,

 453),

but that citizens who brought public comments to the city clerk

on January 22 and 23 were told that they were too late,

 and that

those comments were not made part of the record

 (Tr. 90—91,

 94—

8

99.).

 Petitioners further maintain that although a petition

against the incinerator and an accompanying cover letter were

brought to the city clerk, only the petition itself was place in

the record.

 (Tr. at 157-158,

 447.)

 Petitioners maintain that

these actions denied them fundamental fairness.

In response, Southwest argues that neither the mayor nor any

city council member remembers the mayor stating that comments

could be submitted until February.

 (Tr.

 at 291,

 372,

 391.)

Southwest contends that if the mayor did state that the public

could communicate with the city council until February,

petitioners misinterpreted this statement as an extension of the

written comment period.

 As to the allegations that the cover

letter is missing from the record, Southwest states that both the

petition and the cover letter are included in the public comments

portion of the record.

 (C1592-Cl595.)

The Board has reviewed the parties’ arguments and the

record,

 and finds no evidence that petitioners were denied

fundamental fairness in connection with the public comment

period,

 or inclusion of public comments in the record.

The

record contains conflicting testimony as to what the mayor may

have stated regarding an extension of the public comment period.

 (Tr.

 291,

 372,

 391, 450—453.)

 However, Section 39.2(c) clearly

establishes a 30-day public comment period, beginning after the

date of the last public hearing.

 In this case, that statutory

30-day period ended on January 21,

 1994.

 Given the conflicting

testimony, co9ñed with the clarity of the statutory 30-day

comment period, we find no violation of fundamental fairness.

As to the contention that the cover letter was not included

in the record,

 it is unclear from petitioners’ arguments which

petition and cover letter they refer to.

 However, the record

does contain at least two separate petitions against the

incinerator, both with accompanying cover letters.

 (Cl581-C1591;

C1592-C1595.)

 Thus, we find no evidence that the City excluded a

cover letter from the record.

Ex Parte

 Contacts

Next, petitioners argue that the proceeding was

fundamentally unfair because the mayor and several members of the

city council engaged in improper ex

 parte

 contacts with the

applicant and prejudged the siting controversy, and should have

been disqualified.

 Among other things, petitioners point to a

We also note that the January 21 deadline was included

in the City’s hearing ordinance, was reiterated by the hearing

officer, and published in the newspaper.

 (Tr. at 88,

 97-98,

 168;

C64.)

9

luncheon meeting with Patrick Mahoney of Energy Answers, held on

September 15,

 1993, which was attended by the mayor and at least

two council members.

 (Tr. at 270—271,

 387.)

 There was also a

reception for Mr. Mahoney held that afternoon at city hall, to

which petitioners contend that members of the Chamber of Commerce

who were opposed to the incinerator, and some city council

members, were not invited.

 (Tr. at 190-193,

 445.)

 Petitioners

further contend that the mayor exhibited bias in his treatment of

opponents,

by,

 inter alia,

 refusing to change the hearing dates

as requested by petitioners, although he had changed the hearing

schedule to accommodate Southwest, and adjourning a city council

meeting while an incinerator opponent was addressing the council.

Petitioners also maintain that three city council members told a

reporter after the vote that they had made up their minds months

ago.

 (Tr. 338-341, 345.)

 Petitioners contend that the behavior

of the mayor and several council members demonstrates that they

prejudged the facts and the law, and so should have been

disqualified on petitioners’ motion.

 (C88—C91.)

In response, Southwest argues that city council members

testified that they based their decision on the application on

the hearing record

 (Tr. at 326, 331—332, 355, 374—375,

 393—394,

507),

 and that the three city council members named in the

newspaper article denied under oath that their minds were made up

prior to the hearing

 (Tr. at 338,

 340—341, 355—356,

 357, 392—

394).

 As to petitioners’ requested change in hearing dates,

Southwest maintains that the December hearings had been moved

forward a day at Southwest’s October request, before the hearings

were formally scheduled, while petitioners did not request a

change in dates until two weeks prior to hearing.

 Southwest

argues that given the tardiness of petitioners’ request, and the

considerable advance notice of the hearing dates, the denial of

the request was reasonable.

 In sum, Southwest contends that the

hearing process was fair to all parties and that there were no

contacts between Southwest and city council members that biased

or predisposed the council members in favor of siting approval.

After reviewing the record, and the parties’ arguments, the

Board finds no violation of fundamental fairness caused by ex

parte contacts or prejudicial behavior by the mayor or city

council members.

 Initially, we reject petitioners’ claims of

impermissible

 ex parte

 contacts before the application was filed

on September 17,

 1993.

 The luncheon and reception for Mr.

Mahoney occurred on September 15.

 Petitioners have cited no

authority which would apply

 ex parte

 restrictions prior to the

 filing of an application for siting approval.6

 Thus, we find no

6

 We note that the September 15 contacts did occur after

notice of the upcoming filing of the application was published.

However, we decline to find that ex parte restrictions apply

10

error in any contacts which occurred prior to September 17,

 1993.

We also find no violation of fundamental fairness caused by

bias towards opponents.

 As to the requested change in hearing

dates,

 we find that the city council’s refusal to change the

dates was reasonable and does not show bias.

 Southwest requested

a one—day change in dates in October, before the hearings were

formally scheduled on October 19,

 1993, while petitioners

requested, two weeks before hearing,

 a postponement of the

December 21-22,

 1993 hearings until January 1994.

 (Tr. at 84,

202—204, 282,

 300; C23.)

 As to the claim that the mayor

adjourned a city council meeting while an incinerator opponent

was speaking, we point out that this action occurred at a city

council meeting, not at the hearing on the application for siting

approval.

 Again, Section 40.1 of the Act requires the Board to

consider the “fundamental fairness of the procedures used by the

local

 decisionmaker

 in reaching its decision.”

 (415 ILCS

5/40.1

 (1992).)

 We do not believe that a local decisionmaker is

somehow required to allow unlimited discussion on a siting

application to occur at any meeting held by that decisionmaker

during the time that the application is pending.

Finally, we find no violation of fundamental fairness caused

by prejudgment of the application by city council members.

 There

is conflicting evidence on the issue of whether three city

council members stated that they had made their decision “months

ago”.

 However, those three members specifically testified that

their decisions were based on the hearing record and were not

finally made until after the hearings.

 (Tr. at 338—43,

 355-357,

and 392—394.)

 The Board’s hearing officer found the testimony of

each witness to be credible.

 (Pr. at 529.)

 After reviewing the

record, we find insufficient evidence of prejudgment to find a

violation of fundamental fairness.

Southwest as a “Shell Corporation”

Finally, petitioners argue that the proceedings were

fundamentally unfair because the applicant is a shell corporation

with no assets, and that other corporations paid the fees and are

the real parties in interest,

 so that neither the city council

nor the public had information about the corporation’s part

operating history.

 In response, Southwest contends that it is

not error for a sister company (in this case West Suburban

Recycling and Energy) to pay an application fee, and that it

(Southwest) did indeed present evidence on Energy Answers and its

 operation of SEMASS.

The Board finds no violation of fundamental fairness

caused by Southwest’s corporate structure,

 or by the fact that

starting as of the date of notice of filing.

West Suburban paid the application fee.

 We reiterate that

Section 40.1 of the Act requires the Board to consider the

“fundamental

fairness

the

procedures

used

the

local

decisionmaker

reaching

its

decision.”

(415

ILCS

5/40.1

(1992).)

fail

see

how

the

corporate

structure

Southwest

could be considered part of the procedures used by the local

decisionmaker

APPLICATION

SECTION

39.2

INCINERATORS

Petitioners

also

 contend that Section

39.2

the

Act

fundamentally

unfair

because

the

applicant

completely

controls

the

content

and

the

timing

the

process.

Petitioners

further

argue

that

Section

39.2

specifically

fundamentally

unfair

applied

the

siting

municipal

waste

incinerators,

 because of

the

interaction

the

Retail

Rate

Law

(220

ILCS

5/8—403.1

(1992)) with Section 39.2.

 In essence, petitioners allege that

the

Retail

Rate

Law

provides

such

 huge potential profit for

incinerator

developers

that

the

 upfront costs of siting are of

little consequence.

 Finally, petitioners assert that incinerator

siting should not be subject to local control, because

incinerators “inherently pollute a greater area than most

landfills.”

In response, Southwest argues that Section 39.2 does apply

to waste-to-energy facilities,

 and is fundamentally fair to

petitioner.

We reject petitioners’ arguments on this issue.

 Once again,

we must point out that the Board’s inquiry into fundamental

fairness is limited to a review of the procedures used by the

local

decisionmaker

reaching

its

decision.

The

content

and

requirements

the

siting

statute

are

not

the

subject

fundamental

fairness

inquiry.

Additionally,

the

Act

clearly

states

that

the

siting

procedures

 of Section 39.2 apply to new

regional pollution control facilities, and the definition of

regional pollution control facility includes waste incinerators.

(415

ILCS

5/3.32(a),

39,

39.2

(1992).)

sum,

would

have

been

error

not

apply

the

provisions

Section

39.2.

CONCLUSION

As stated above, the Board finds that these proceedings were

the

extent

that

 petitioners challenge the

sufficiency

evidence

the

operating

history

the

applicant,

which

one

the

criteria

which

may

considered

pursuant

Section

39.2(a),

that

challenge

would

properly

made

claim

that

the

local

 decisionmaker’s finding on the

 operating history is against the manifest weight of the evidence.

12

fundamentally unfair as a result of the tour of the SEMASS

facility.

 We reject the other fundamental fairness challenges

raised by petitioners.

 Because we find the proceedings to have

been fundamentally unfair, we reverse the City’s decision

granting siting approval.

 We have found that petitioners were

prejudiced

being

unable

address

all

the

impressions

formed

the

council

members

who

participated

the

tour.

Remand

the

decision,

this

case,

cannot

cure

that

prejudice.

Havana

 (July 21,

 1994),

 PCB 94—44,

 slip op. at 2.)

ORDER

The

February

22,

1994

decision

the

City

Beardstown,

granting

siting

approval

Southwest

Energy

Corporation,

hereby reversed as the result of a fundamentally unfair

proceeding.

This

docket

closed.

ORDERED.

C. Manning concurred.

I, Dorothy M.

 Gunn,

 Clerk of the

Illinois

Pollution

Control

Board, hereby certify that the a~ve opinion and order was

adopted on the

j/~Z

 day of

 1995, by a vote

of

_____

Control Board