ILLINOIS POLLUTION CONTROL BOARD
January
19, 1995
CONCERNED
CITIZENS OF
)
WILLIAMSON
COUNTY,
AND
REV.
)
PAUL
CRAIN
AND
ROSE
ROWELL,
AS
)
MEMBERS
OF
CONCERNED
CITIZENS
)
OF WILLIAMSON COUNTY, AND
)
INDIVIDUALLY,
)
Petitioner,
)
v.
)
PCB
94—262
(Landfill
Siting
Review)
BILL KIBLER DEVELOPMENT CORP.,
)
a/k/a KIBLER DEVELOPMENT CORP.,
AND
THE
WILLIAMSON
COUNTY
BOARD
OF
COMMISSIONERS FOR AND ON
BEHALF
OF THE COUNTY OF
WILLIAMSON IN THE STATE OF
ILLINOIS,
Respondents.
KENNETH A.
BLEYER,
ESQ., APPEARED ON BEHALF OF THE PETITIONERS;
THOMAS
J. IMMEL,
ESQ., APPEARED ON BEHALF OF KIBLER DEVELOPMENT
CORPORATION;
CHARLES GARNATI,
ESQ., WILLIAMSON COUNTY STATES ATTORNEY,
APPEARED
ON BEHALF OF THE WILLIAMSON COUNTY
BOARD
OF
COMMISSIONERS.
OPINION AND ORDER OF THE BOARD
(by G.
T. Girard):
This matter is before the Board on a September 21, 1994,
petition for review,
filed by Concerned Citizens of Williamson
County, and Reverend Paul Cram
and Rose Powell as members of
Concerned Citizens of Williamson County, and individually
(collectively, CCWC).
In response to a Board order,
CCWC filed
an amended petition on October 20,
1994.
CCWC’s petition is filed pursuant to Section 40.1(b) of the
Illinois Environmental Protection Act (Act)
(415 ILCS 5/1 et sea.
(1992)).
CCWC seeks review of an August 23,
1994, decision of
respondent Williamson County Board of Commissioners
(County
Board) granting site location suitability approval to respondent
Kibler Development Corporation (Kibler Development) for a new
regional pollution control facility.
Hearing was held on
December
19,
1994, before Board Hearing Officer John Hudspeth in
Herrin, Williamson
County, Illinois.
Members of the public
attended the hearing.
For the reasons enunciated below, the Board finds that the
2
proceedings leading to the County Board’s siting approval were
fundamentally unfair, and the Board therefore reverses and
remands the County Board’s decision.
BACKGROUND
Kibler Development originally filed an application with
Williamson County for local siting approval of a new regional
pollution control facility on May 19,
1992.
The County Board
granted Kibler Development’s request for site approval on
November 13,
1992.
The County Board’s decision granting site
location approval was appealed to this Board and we issued an
opinion and order on May 20,
1993,
which found a jurisdictional
defect and vacated the County Board’s siting approval (Concerned
Citizens of Williamson CountY v. Kibler Development et al, PCB
92—204,
142 PCB 573—579
(May 20,
1993)).
Kibler Development
chose to file a new application with Williamson County rather
than appeal the Board decision.
(Res.Br. at 1.)’
On February 9,
1994, Kibler Development published a notice
(C0003—C0004)
in the Southern Illinoisan and the Marion Daily
Republican, two newspapers of general circulation, which stated
that Kibler Development would file an application for siting
approval for a new regional pollution control facility on March
1,
1994, with the County Board.
The application was filed on
March
1,
1994.
(C0001—C0320.)
Public hearings were held in Williamson County on June
2 and
3,
1994.
(C0466—C0845.)
On June 17,
1994,
the County Board held
a special meeting.
Official minutes stated that the meeting was
called “to obtain information regarding the technical aspects of
the Regional Pollution Control Facility proposed by Kibler
Development Corporation siting application”.
(C0936.)
The
minutes also listed the topics discussed and the individuals
participating in the discussion
(C0936), which included the
County Board’s technical experts and Bill Kibler,
owner of Kibler
Development.
(C0002.)
According to County Board Commissioners,
members of the public were allowed to observe the June 17,
1994,
County Board meeting, but were not allowed to participate.
(Tr.
at 141,
206.)
On August 23,
1994, the County Board issued its decision
1The County Board will be cited as “C
“.
The transcript
of the December 19,
1994, Board hearing will be cited as “Tr. at
“.
Citizen’s petition will be cited as “Pet.
at
“.
Citizen’s amended petition will be cited as “Axn.Pet. at
“.
CCWC brief will be cited as “pet Br
at
“.
Kibler
Development’s brief will be cited as “Res.Br. at
“.
December
19,
1994, motion for sanctions will be cited as “Not. at
“.
3
granting Kibler Development’s request for site approval.
(C1029-
C1030.)
CCWC filed the instant petition for review with the
Board on September 21,
1994, and filed an amended petition on
October 20,
1994.
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 applicable criteria have been met by the applicant
can siting approval be granted.
The County Board found that
Kibler Development met its burden on all the criteria.
(C1029-
C1030.)
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 v. County of
McLean
(4th Dist.
1991),
207 Ill.App.3d 352, 566 N.E.2d 26 McLean
County.)
Additionally, the Board must review the areas of
jurisdiction and fundamental fairness.
Section 40.1 of the Act
(415
ILCS
5/40.1
(1992)) requires the Board to review the
procedures used at the local level to determine whether those
procedures were fundamentally fair.
(E & E Haulina.
Inc. v.
Pollution Control Board
(2d Dist.
1983),
116 Ill.App.3d 586, 451
N.E.2d 555,
562, aff’d in part (1985)
107 Ill.2d 33, 481 N.E.2d
664
(E
& E Hauling).)
CCWC’s petition
(Ain.Pet. at 1-7) raises numerous issues
concerning jurisdictional,
fundamental fairness, and siting
criteria challenges to the County Board siting approval decision.
Since jurisdiction is a threshold issue, we will address those
claims first, then proceed to fundamental fairness,
and finally
the siting criteria at Section 39.2(a).
We will also deal with
several preliminary matters including outstanding motions by both
parties.
PRELIMINARY MATTERS
Board Hearing Officer Decisions
In its closing brief, CCWC challenged several actions of
this Board’s hearing officer at the December 19,
1994, public
hearing.
CCWC asserts that the hearing officer improperly denied
CCWC the opportunity to make an offer of proof.
(Pet.Br. at 6-7,
Tr. at 203.)
CCWC also maintains that the hearing officer
improperly denied CCWC the opportunity to refresh a witness’
recollection of events.
(Pet.Br. at 8, Tr. at 186,
197,
201.)
After carefully considering CCWC’s arguments and the hearing
4
transcript, the Board hereby affirms the hearing officer’s
decisions in these matters.
CCWC’s Request for Funds
CCWC requested that the Board rule on a motion first made by
CCWC in a post-hearing memorandum filed with the County Board on
July 1,
1994.
(C0978-C0991.)
CCWC requested financial
assistance from the County Board for reasonable expenses,
attorney fees,
and costs.
(C0991, Pet.Br. at 6.)
CCWC cited no
regulatory or statutory authority for this request.
The Board
can find no authority in the Act which would allow the Board to
grant CCWC’s motion for its reasonable expenses,
attorney fees,
and costs as requested in this matter.
Therefore, the Board
denies the request for funds.
Motions for Dismissal by CCWC
On December 19,
1994, the Board received a motion for
dismissal filed by CCWC.
At the Board hearing on December 19,
1994, CCWC also made an oral motion for dismissal based on the
actions of Kibler Development.
(Tr. at 19,
130.)
CCWC
specifically excluded the actions of the Williamson County Board
of Commissioners from the motion for dismissal.
(Tr. at 19.)
CCWC asked the Board to dismiss with prejudice the siting
application of Kibler Development, or otherwise reverse the
County Board, because CCWC alleged that its case was prejudiced
by the failure of Bill Kibler to present himself to be deposed
and to testify at hearing.
(Tr. at 19.)
Kibler Development
challenged the discovery requests on numerous grounds, alleging
statutory and procedural deficiencies in issuance of the
discovery subpoenas.
(Tr. at 31-75.)
In its closing brief, CCWC
expanded the motion for dismissal into two motions:
a motion for
dismissal for failure to honor a deposition notice
(Pet.Br. at
11); and a motion for dismissal for failure to honor a subpoena.
(Pet.Br. at 14.)
CCWC filed a notice for discovery deposition with the Board
on December 9,
1994,
for the following individuals:
Sam
Shemwell, Virgil Harris, Curtis Palmer, Duane Wittenborn, John
Gordon, Bill Kibler, Michael Rapps, and Ron Reeder.
At the Board
hearing, Kibler Development made “a motion to quash all of the
discovery requests in this case”.
(Tr. at 31.)
The County
Board’s attorney challenged the subpoenas by stating that “I
don’t think things have been done properly”
(Tr. at 85), but he
produced the requested witnesses “in the spirit of cooperation”.
(Tr. at 85.)
The Board Hearing Officer initially reserved ruling
on these motions, which originated at hearing; however in the
interest of expediency the Board Hearing Officer ultimately
denied the motions.
(Tr. at 83.)
The Board finds that,
in this instance, CCWC was not
5
prejudiced by the failure of Bill Kibler to be deposed or
testify.
The petitioner was able,
through other evidence, to
present its case to the Board.
Therefore,
a dismissal is not
warranted at this juncture.
The Board also affirms the hearing
officer’s denial of the “motion to quash all of the discovery
requests in this case” made at hearing by Kibler Development.
(Tr. at 31.)
Motion for Sanctions by CCWC
On December 19,
1994,
the
Board
received
a motion for
sanctions filed by CCWC against Kibler Development, Thomas Immel
and Mr.
Kibler.
CCWC argued that sanctions for failure to honor
a deposition notice and, as to Mr. Kibler for failure to appear
at hearing should be imposed.
(Tr.
at 19, Pet.Br. at
9, Mot. at
5.)
CCWC cites Board regulatory authority to sanction the
offending party by ordering it to pay reasonable costs and
expenses incurred.
(35 Ill.
Admit. Code 101.280 and 107.101.)
After a careful review of the facts in this case, the Board
finds that the actions of respondents should not be sanctioned.
The record indicates that respondents have not directly violated
a Board or hearing officer order in this case.
Further, the
record is not clear that Mr. Kibler actually received the
subpoena in question and therefore his failure to appear is
understandable. Thus,
in examining all of these factors the Board
is not convinced that sanctions are warranted.
Therefore, the
motion for sanctions is denied.
JURISDICTION
The notice requirements of Section 39.2(b)
of the Act are
jurisdictional prerequisites to the County Board’s power to hear
a landfill siting proposal.
CCWC asserts that Kibler Development
failed to show that all proper persons or entities received
notice.
(Am.Pet. at 7,
Pet.Br. at 5,
30.)
In considering the notice challenge raised, the pertinent
parts of Section 39.2(b) of the Act are as follows:
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
***
Such written notice shall also be served upon members of the
General Assembly from the legislative district in which the
proposed facility is located and shall be published in a
newspaper of general circulation published in the county in
which the site is located.
Such notice shall state the name
and address of the applicant, the location of the proposed
6
site, the nature and size of the development, the nature of
the activity proposed, the probable life of the proposed
activity, the date when the request for site approval will
be submitted, and a description of the right of persons to
comment on such request as hereafter provided.
(415
ILCS
5/39.2(b)
(1992).)
CCWC
maintains
that
Kibler Development did not show that
proper notice had been served on property owners who were mobile
home owners or whose estates were mineral interests.
(Pet.Br. at
5.)
In addition, CCWC asserts that the mail receipts addressed
to United States Senator Paul Simon and United States Congressman
Jerry Costello did not bear a date of receipt, and thus raise
doubts as to whether or not Senator Simon or Congressman Costello
were properly noticed.
(Pet.Br. at 5.)
Kibler Development maintains that evidence of proper
newspaper notice are in the record.
(C0003-C0004.)
Kibler
Development also maintains that all property owners were properly
noticed (C0486—C0488, C0616,
C0723, C0846—C0903); that CCWC
offered no proof to support the notice sufficiency challenges
(Res
.
Br. at 8); and that the County Board made a finding that all
the required notices had been given.
(C1029.)
After careful consideration of the parties’ arguments and
the record in this proceeding, the Board finds no evidence that
the newspaper notices were deficient.
In addition, the Board can
find no evidence in the record that the notices to affected
persons or entities were deficient.
With regard to petitioner’s
assertion that notice to United States Senator Paul Simon and
United States Representative Jerry Costello were deficient, the
Board finds that the record shows
(C0863, C0900-C0902) that
notice was properly given.
In summary, the Board finds that the
County Board had jurisdiction under Section 39.2(b) of the Act to
consider Kibler Development’s landfill siting application.
FUNDAMENTAL FAIRNESS
Section 40.1 of the Act requires the Board to review the
proceedings before the local siting authority to assure
fundamental fairness.
In E
& E Hauling,
Inc. v. IPCB (2d Dist.
1983),
116 Ill.App.3d 586,
594, 451 N.E.2d 555,
564, aff’d in
part (1985),
107 Ill.2d 33, 481 N.E.2d 664, the appellate court
found that although citizens before a local decision—maker 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.
(See also
Industrial Fuels, 227 Ill.App.3d 533,
592 N.E.2d 148;
Tate,
188
Ill.App.3d 994, 544 N.E.2d 1176.)
Due process requirements are
determined by balancing the weight of the individual’s interest
7
against society’s interest in effective and efficient
governmental operation.
(Waste Management of Illinois Inc.
v.
IPCB
(2d Dist.
1989),
175 Ill.App.3d 1023, 530 N.E.2d 682.)
The
manner in which the hearing is conducted, the opportunity to be
heard, the existence of ex ~arte contacts, prejudgment of
adjudicative facts,
and the introduction of evidence are
important, but not rigid, elements in assessing fundamental
fairness.
(Hediczer v.
D
& L Landfill, Inc.
(December 20, 1990),
PCB 90—163,
117 PCB 117.)
CCWC alleges that the proceedings were fundamentally unfair
in eight ways:
1) Ex—parte contacts occurred at a special
meeting of the County Board on June 17,
1994
(Pet.Br. at 15);
2)
Bill Kibler’s refused to testify at the public hearing on June 2
and 3,
1994, did not allow CCWC to bring out all possible
information for the County’s consideration
(Pet.Br. at 18);
3)
faulty publication notice of the June 2 and
3 public hearing
(Pet.Br
•
at 19);
4) the County Board failed to comply with its
own ordinance for conduct of the siting application process
(Pet.Br. at 20);
5)
late filing of County Board expert Gordon’s
report and his unavailability at public hearing on June 3,
1994
(Pet.Br. at 21);
6)
failure to give proper notice of the
procedures to be used at the public hearing (Pet.Br. at 24);
7)
failure to schedule the public hearing at a time convenient for
the general public
(Pet.Br. at 25); and 8) improper viewing of
another landfill site by County Board Commissioner Virgil Harris
(Pet.Br. at 30).
1.
The CountY Board’s June 17,
1994. Special Meeting
CCWC argues that actions at the County Board’s June 17,
1994,
special meeting were fundamentally unfair to CCWC, because
Bill Kibler, owner of Kibler Development, was allowed to
participate in a discussion of the landfill siting application
which involved the three County Board Commissioners and their
technical experts.
(Pet.Br. at 15-17.)
CCWC maintains that Bill
Kibler’s participation in the June 17,
1994, discussion was also
fundamentally unfair because he did not testify at the public
hearing on June 2 and 3,
1994,
and, therefore, his comments on
June 17,
1994, were supplemental to the public record in this
matter.
(Pet.Br. at 17.)
CCWC also maintains that the integrity
of the proceedings was severely compromised by the County Board’s
June 17,
1994, meeting for the purpose of collecting further
additional information about the application after the public
hearings on June
2 and 3,
1994, were closed.
(Pet.Br. at 16-17.)
CCWC argues that the additional fact that CCWC was excluded from
participation in the June 17,
1994, meeting “seems to exacerbate
the problem so much so that only outright dismissal of the
application is appropriate”.
(Pet.Br. at 17.)
Kibler Development maintains that the June 17,
1994, meeting
was a discussion between the County Board Commissioners and their
8
staff and advisors that the County Board decided to conduct in
public view.
(Res.Br. at 5.)
Kibler Development claims that the
meeting was called by the County Board “to openly deliberate and
discuss technical issues concerning the (Kibler Development)
application”.
(Res.Br. at 5.)
Kibler Development cites the
County Board’s news release
(C0924) and official meeting minutes
(C0936)
as evidence of public notice and meeting intent on June
17,
1994.
Kibler Development also notes that the County Board
and their advisors sat around a table discussing the application,
while Bill Kibler sat in the audience with the members of the
public,
including representatives of CCWC.
(Tr. at 103-106, 112,
119—120,
135—137,
143—144,
158—159,
195—197,
206, 218—219, 225—
226.)
Based upon the record in this case, appellate court
decisions, and review of Section 39.2 of the Act, the Board finds
that the participation of Bill Kibler, owner of Kibler
Development,
in a discussion with the County Board concerning
technical
aspects
of
the application on June 17,
1994, was
fundamentally
unfair.
The basic facts of the June 17,
1994,
special
meeting
of
the
County
Board
are
uncontroverted and are outlined in the official
minutes
of
the
meeting.
(C0936;
Tr.
at
159-160.)
Discussion
at
the meeting covered numerous technical aspects of the application
and the entire meeting lasted for nearly two hours.
Discussion
participants included the County Board Commissioners, their
technical experts, and Bill Kibler,
owner of Kibler Development.
(C0936.)
Mr. Palmer, Chairman of the County Board, testified
that the County Board did not allow public comment at the June
17,
1994,
meeting.
(Tr. at 206.)
A representative of CCWC, who
attended the June 17,
1994, meeting, testified that she
understood that the audience would be excluded if the audience
attempted to participate in the discussion.
(Tr. at 122.)
Appellate court decisions have found that the local decision
process must be viewed as an adjudicatory, rather than
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.)
In a landfill siting adjudicatory proceeding,
the decisionmnaker must resolve disputed facts and determine that
the nine statutory criteria have been met.
(Id.)
The
decisionmaker must be impartial and decide the issues based on
the record before it.
Ex parte contacts or other action which
could unfairly influence the decisionmaker are improper in an
adjudicatory proceeding.
This differs from the legislative
function that the governing body generally undertakes where
decisions tend to be of a policy—making type.
However, a court
will not reverse an agency’s decision because of ex parte
contacts with members of that agency absent a showing of
prejudice.
(Fairview,
198 Ill. App. 3d 541, 555 N.E.2d 1178,
citing, Waste Management of Illinois v. IPCB (1988),
175 Ill.
9
App. 3d 1023,
530
NE.
2d
682.)
Further, Section 39.2(g)
of the
Act specifies that the procedures of the Act are the exclusive
siting procedures.
Section 39.2(d) specifies that “Et)he public
hearing shall develop a record sufficient to form the basis of
appeal of the decision...”.
Thus, the June 17,
1994, special
meeting of the County Board was fundamentally unfair for several
reasons.
First, Mr. Kibler participated in a discussion on technical
aspects of the application with the County Board members after
the close of the public hearing held on June 2 and 3,
1994, and
prior to the County Board’s siting approval on August 23,
1994.
County Board member Virgil Harris testified that he had not
decided how to vote at the time of the June 17,
1994, special
meeting.
(Tr. at 93-94.)
Thus, the County Board had statements
made by Mr. Kibler, owner of Kibler development, which were not
made a part of the record developed in part at the June
2 and
3
public hearing.
Therefore,
the County Board’s decision was not
based solely on the record of the proceeding and was
fundamentally unfair.
Second,
since Mr. Kibler did not testify at the public
hearing on June
2 and 3, CCWC did not have the opportunity at
hearing for cross—examination or rebuttal of his personal
statements.
Mr. Kibler’s statements at the June
17,
1994,
special meeting are prejudicial.
CCWC was not allowed to
participate
in
the
discussion
or
to
cross—examine
Mr
Kibler;
thus, there was never an opportunity to refute or challenge Mr.
Kibler’ s statements.
Clearly, the June 17 meeting was an
ex
parte discussion,
albeit one that is summarized in the public record.
(C0936.)
The existence of ex
parte
contacts is an element in assessing
fundamental fairness.
(Hedi~erv. D
& L Landfill. Inc.
(December
20,
1990), PCB 90-163,
117 PCB 117.)
The Board does not take
issue with the County Board’s intended purpose at the special
meeting of June 17,
1994:
a publically viewed discussion with the
County Board’s experts on the technical aspects of the
application.
However, the participation of only one party (Bill
Kibler, owner of Kibler Development),
in the discussion, does not
comport with adjudicatory standards, including the exclusion of
ex
parte
contacts.
2.
Bill Kibler’s Refusal to Testify at the Public Hearina on
June
2
and
3
CCWC
argues that Bill Kibler’s refusal to testify at the
June
2 and
3 public hearing violated CCWC’s right to due process.
(Pet.Br. at 18.)
CCWC asserts that Kibler could have offered
valuable information to the County Board.
(Pet.Br. at 18.)
CCWC
further asserts that Kibler’s participation in the discussion at
the June 17 special meeting was evidence that Kibler’s input was
10
important.
(Pet.Br. at 19.)
Kibler Development maintains that CCWC never fully explained
how
Kibler’s
non-testimony
deprived
CCWC
of
a fundamentally fair
proceeding.
Kibler Development argues that the appropriate
experts and their documents were introduced at the June 2 and
3
public hearing, and that they were subject to extensive cross—
examination by petitioner’s attorney at that time.
(Res.Br. at
6.)
Based on a review of the record in this proceeding, the
Board finds that the proceedings were not fundamentally unfair
because Bill Kibler did not testify at the June
2 and 3 public
hearing.
The record shows that Kibler Development’s experts were
available at the public hearing,
in addition to the documents
submitted with the application.
(C0001—C0320, C0466—C0845.)
CCWC has failed to show how Bill Kibler’s failure to testify at
public hearing on June 2 and 3 has prejudiced CCWC.
The Board
has already ruled on Bill Kibler’s participation in the June 17,
1994, County Board special meeting in the section above.
3.
Notice for June 2 and
3.
1994, Public Hearing
CCWC
asserts that the public notice published in the Marion
Daily Republican and Southern Illinois newspapers on February 9,
1994, was defective because the site map was too small and did
not show the location of Illinois Centre Mall.
(Pet.Br. at 19,
20.)
CCWC argues that opponents were denied fundamental fairness
because “the map failed to put the general public on notice that
a regional landfill was being proposed” within one mile of
Illinois Centre Mall,
(Pet.Br. at 20.)
Kibler Development maintains that the County Board’s
published notice of the June 2 and
3 public hearing contained a
portion of a plat map depicting accurately the location of the
proposed landfill site.
(Res.Br. at 8,
C0910.)
As further
evidence that CCWC was not denied fundamental fairness, Kibler
Development notes
(Res.Br. at
8) that nine citizens offered
public comment at the hearing (C0770) and numerous citizens
submitted post-hearing written comments.
(C0913-C0921.)
Based on review of the record, and particularly the public
notice
(C0910), the Board finds that CCWC’s arguments have no
statutory basis and are without merit.
4.
Local
Ordinance
on
Hearing
Procedures
CCWC argues that the proceedings at the County Board hearing
on June 2 and 3,
1994, did not comport with Williamson County
Ordinance 92—8—11—6,
Sections 7(a) and 8(b).
(Pet.Br. at 20.)
CCWC alleges two areas of noncompliance.
First,
“the state’s
attorney failed to begin each day of hearings by instructing all
11
of the participants of the rules and their respective
responsibilities as required by Section 7(a)”.
(Pet.Br. at 20.)
Second, despite local ordinance requirements that witness
registration and document filing was to be done at least five
days prior to the hearing, Kibler Development entered some
documents
and registered some witnesses at hearing.
(Pet.Br. at
21, C0910.)
CCWC objected to the introduction of those documents
and testimony of those individuals at hearing.
(Tr. at 0500,
C0504, C0717.)
CCWC further asserts that it was fundamentally
unfair that Kibler Development was allowed to introduce those
documents and the testimony of those witnesses over CCWC’s
objections, because CCWC was not able to review the list of
witness documents prior to the public hearing.
(Pet.Br. at 21.)
Kibler Development responds that since CCWC did not raise
objection to the Williamson County State’s Attorney’s failure to
begin each day of public hearings with instruction according to
the local ordinance, the objection should be deemed waived.
(Res.Br. at 9.)
Kibler Development also notes that the local
ordinance was not introduced into the record by CCWC,
so the
Board is not able to review the ordinance.
(Res.Br. at 9.)
The Board finds that CCWC’s challenges concerning the
hearing officer’s failure to give instructions, and the
introduction of exhibits and testimony of individuals at hearing,
are totally without merit.
CCWC has presented nothing beyond
speculation that it was harmed by introduction of witnesses and
exhibits at hearing.
After review of the record, the Board finds
no prejudice in the County Board’s actions.
5.
Late Filing of Mr. Gordon’s Report and His Unavailability as
a Witness on June 3,
1994
Mr. John Gordon represented the engineering firm of Gordon
and Price,
Inc.,
which reviewed the Kibler Development siting
application at the request of the County Board.
(C0356, Tr. at
98.)
The “Gordon Report”
(C0355-C0453) was filed with the County
Board on May 27,
1994.
(C0355.)
Mr. Gordon attended the public
hearing on June 2,
1994, but was not called as a witness.
(Tr.
at 100-102.)
He did not attend on June 3,
1992, because of a
previously scheduled vacation.
(Tr. at 101.)
CCWC asserts that it was denied fundamental fairness because
the Gordon Report was filed on May 27,
1994,
“just two business
days prior” to public hearing.
(Pet.Br. at 22.)
Next,
CCWC
maintains that since Kibler Development did not call Mr. Gordon
as a witness on June 2,
1994, when Kibler Development was
presenting its case at hearing, and since CCWC could not call Mr.
Gordon as a witness until June 3,
1994, when he was unavailable
to testify, that it was denied fundamental fairness.
(Pet.Br. at
21—22.)
12
Kibler Development argues that Mr. Gordon was hired by the
County Board, not by Kibler Development.
(Res.Br. at 7.)
Kibler
Development argues that the Gordon Report did not materially
conflict with the conclusions of Kibler Development experts who
were planned witnesses at the hearing.
(Res.Br. at 7.)
Kibler
Development further asserts that the late filing (May 27) of the
Gordon Report also worked to the disadvantage of Kibler
Development, which had “serious clarification questions” for Mr.
Gordon.
(Res.Br. at 8.)
The Board finds that neither the filing of the Gordon Report
on May 27,
1994, a few days prior to hearing, nor the
unavailability of Mr. Gordon’s testimony on June
2 or
3, 1994,
compromised the fundamental fairness of the proceedings.
There
is no requirement in Section 39.2 of the Act (415 ILCS 39.2)
that
the County Board hire an expert to review the application.
Subsection 39.2(g)
of the Act specifies that the Act contains the
exclusive siting procedures for regional pollution control
facilities.
(415 ILCS 39.2(g).)
The Gordon Report was equally
available to both parties in the record.
(C0355—C0453.)
Finally, CCWC has not demonstrated any of the elements in
assessing fundamental fairness listed in Hedicier
(Hediger v. D
&
L Landfill. Inc.
(December 20,
1990, PCB9O—163)), nor has CCWC
justified adding additional elements to the list.
6.
Proper Notice of Hearing Procedures
CCWC contends that,
contrary to standards of fundamental
fairness, the general public and interested parties were not
given notice of the procedures to be used at public hearing.
(Pet.Br. at 24.)
CCWC argues that the County Board should have
established procedures to govern the siting process as permitted
under the Act.
(Pet.Br. at 24.)
Kibler Development asserts that CCWC was present at hearing
and represented by an attorney.
(Res.Br. at 8.)
Kibler
Development also notes that the hearing officer announced the
procedures on June 2 at hearing (C0485-C0486), and further
asserts that the procedures were followed.
(Res.Br. at 8.)
Finally, Kibler Development argues that no one raised objection
to the procedures at hearing.
(Res.Br. at 8.)
The Board deems the argument of CCWC waived by its inaction
in the proceeding before the local decisionmaker.
(FACT,
555
N.E.2d
at
1182—1183.)
7.
Schedule Public Hearing at Time Convenient to Public
CCWC argues that the June 2 public hearing was scheduled at
4:00 p.m. on a weekday, when many members of the general public
were unable to attend because of work schedules and/or children.
(Pet.Br. at 25.)
13
Kibler
Development
notes
that this objection was not raised
at the
County
Board hearing on June 2 and 3, but was raised in
post-hearing comments by CCWC.
Kibler Development contends that
this argument should therefore be deemed waived by the Board.
(Res.Br.
at
9.)
Kibler Development also argues that the Act
specifies
no
appropriate
time
for hearings.
The
Board
has previously ruled that hearings held during
normal
business
hours
meet
the requirements of fundamental
fairness.
(Turlek et al
v. Village of Summit et al.,
(May 5,
1994)
PCB 94—14,
94—21,
94—22
(consl.)
—
PCB
—,
citing,
Citizens for a Better Environment v. McCook,
(March 25,
1993),
PCB 92—198,
PCB 92-201, 140 PCB 223.)
Further, the Board has
held that holding a hearing in the evening hours, even late into
the next morning,
is not, on its face, fundamentally unfair.
(Daly et al.
V.
Villacie of Robbins,
(July
1,
1993)
PCB 93-52,
93-
54
(consi.)
—
PCB
_.)
Therefore, the Board finds that the time
set for the June
2 and 3 public hearing was not fundamentally
unfair.
8.
Trip to View Another Landfill Site by County Board
Commissioner Virgil Harris
Commissioner Virgil Harris testified at hearing that he had
visited another landfill located between Batavia, Illinois and
Geneva,
Illinois,
“probably” after the filing of the siting
application.
(Tr. at 94.)
Mr. Harris testified that he had used
information gathered from the visit in his decision on the
instant landfill siting application.
(Tr. at 95.)
CCWC argues
that based on the Board precedent (Concerned Citizens for a
Better Environment v. City of
,
et al, PCB94-44), Mr.
Harris’ trip was fundamentally unfair because CCWC “did not have
the chance to combat the commissioner’s impressions about the
landfill he visited”.
(Pet.Br. at 31.)
Kibler Development
maintains that Mr. Harris made the trip on his own time without
conferring with any of the parties involved.
(Res.Br. at 9.)
In
addition, Kibler Development points to Mr. Harris’ statement at
hearing that he based his decision on the Kibler Development
siting application solely on the record in the case.
(Tr. at
96.)
After
careful
review
of
the
arguments
and the record, the
Board finds that Mr.
Harris’ personal visit to a landfill was not
fundamentally unfair to CCWC.
Mr. Harris’ stated at hearing that
he based his decision on the record.
(Tr. at 96.)
The Board
does not agree with CCWC that Mr. Harris’ trip has the same
elements that led to a finding of fundamental unfairness in
Havana (Concerned citizens for a Better Environment v. City of
Havana, et al, PCB94—44)
or a more recent case, Beardstown
(Beardstown Area Citizens for a Better Environment v. City of
Beardstown and Southwest Energy Corporation, PCB94-98).
Havana
and Beardstown are distinguished by elements that were not
14
present in the instant case including:
trips paid for and
arranged by the applicant; site-seeing and other activities
unrelated to information gathering; and the participation of
family members.
CONCLUSION
As stated above, the Board finds that these proceedings were
fundamentally unfair because Bill Kibler,
owner of Kibler
Development, participated in a discussion on technical aspects of
the application with the County Board on June 17,
1994.
We
reject the other jurisdictional and fundamental fairness
challenges raised by CCWC and also reject several preliminary
motions by CCWC.
The Board will remand this proceeding for further action
consistent with the Board’s findings herein.
The Board finds
that remand of the proceeding is the proper course of action.
(~
Land and Lakes v. Romeoville, PCB 91-7 and
(CBE v. McCook,
PCB 92—201.)
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The August 23,
1994, decision of the Williamson County Board
of Commissioners granting siting approval to Kibler Development
Corporation,
is hereby reversed and remanded as a result of a
fundamentally unfair proceeding.
The County Board shall conduct
a new public hearing and comment period on the application.
The
public hearing shall include the statements made by Mr. Bill
Kibler at the June 17 special meeting, as well as allowing the
questioning
of
or
rebuttal
to
Mr.
Kibler’s statements.
The
County
Board
shall
make
its
decision
based
on
the
record
in
this
case
which
will
include
the
new public hearing and comment
period.
The 120 day statutory decision time begins 35 days after
the date of this order unless tolled by the filing of a motion to
reconsider.
This docket is closed.
15
IT IS SO ORDERED.
Board Members J. Theodore Meyer and Marili McFawn concur.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a~pveopinion and order was
adopted on the
/‘9~
day of
___________________,
1995,
by
a
voteof
~
.
~
~
Dorothy M. 4unn, Clerk
Illinois P~1lutionControl Board
