ILLINOIS POLLUTION CONTROL BOARD
May 5,
1994
MICHAEL TURLEK, LILLIAN
)
SMEJKAL
and
JOHN
LATHROP,
)
)
Petitioners,
)
v.
)
PCB
94—19
(Land Siting Review)
VILLAGE OF SUMMIT and
)
WEST SUBURBAN RECYCLING
)
AND ENERGY CENTER,
INC.,
)
)
Respondents.
KAY
KULAGA AND ALICE
ZEMAN,
)
)
Petitioners,
v.
)
PCB 94—21
)
(Land Siting Review)
VILLAGE OF SUMMIT and
)
WEST SUBURBAN RECYCLING
)
AND ENERGY CENTER,
INC.,
)
)
Respondents.
CITIZENS FOR A BETTER
)
ENVIRONMENT, PATRICIA J.
)
BARTLEMAN, NANCI KATZ
and MICHELLE SCHNITS,
)
Petitioners,
v.
)
PCB 94-22
)
(Land Siting Review)
VILLAGE OF SUMMIT and
)
(Consolidated)
WEST SUBURBAN RECYCLING
)
AND ENERGY CENTER,
INC.,
)
Respondents.
KEITH HARLEY, CHICAGO LEGAL CLINIC,
INC., APPEARED ON BEHALF OF
MICHAEL TURLEK,
LILLIAN SMEJKAL, AND JOHN LATHROP.
KAY KULAGA AND ALICE ZEMAN APPEARED ON THEIR OWN BEHALF.
STEFAN A. NOE, CITIZENS FOR A BETTER ENVIRONMENT, AND ELPIDIO R.
VILLkRREAL, AND DAVID C.
LAYDEN,
SONNENSHEIN NATH
& ROSENTHAL,
APPEARED ON BEHALF OF CITIZENS FOR A BETTER ENVIRONMENT, PATRICIA
J.
BARTLEMAN, NANCI KATZ AND MICHELLE SCHMITZ.
2
ROBERT M. OLIAN AND MARK CHUTKOW, SIDLEY AND AUSTIN, APPEARED ON
BEHALF OF WEST SUBURBAN RECYCLING AND ENERGY CENTER.
OPINION
AND
ORDER OF THE BOARD
(by M. McFawn):
This matter is before the Board on three third-party
petitions for review filed pursuant to Section 40.1(b) of the
Environmental Protection Act
(Act)
(415 ILCS 5/40.1(b) (1993)).
Each petition contests the December
6,
1993 decision of the
Village of Summit (Village) granting site location suitability
approval for construction of a new regional pollution control
facility
(RPCF)
to West Suburban Recycling and Energy Center,
Inc.
(WSREC). The petition in PCB 94-19
was
filed on January
7,
1994, and the petitions in PCB 94-21 and PCB 94-22 were filed on
January
10,
1994.
The petitions were consolidated by the Board
on its own motion on January 20,
1994.
As directed by the Board in its order of January 20,
1994,
petitioners in PCB 94-22 filed an amended petition on January
31,
1993, and petitioners in PCB 94—19 and PCB 94—21 each filed an
amended petition on February 1,
1994.
A hearing was held on
these consolidated petitions on March
1,
1994.
BACKGROUND
WSREC filed an application for siting approval of a new RPCF
on June 25,
1993.
Public hearings were held on that application
on September 28 and 29,
1993.
On December 6,
1993,
the Village
issued its written decision finding that WSREC’s application met
all applicable criteria set forth in Section 39.2 of the Act
(415
ILCS 5/39.2), and passed Ordinance No. 93-0-30 granting siting
approval.
The Village had previously approved on August
5,
1992 a
siting application filed by WSREC for a similar facility at the
same site.
The public hearings on that application were held on
August 10 and 11,
1992.
That decision was appealed to the Board.
In its decision of February 25,
1993, the Board found the
procedures used by the Village to be fundamentally unfair. The
Board remanded the case to the Village for a new hearing process
to be conducted in accordance with the provisions of Section 39.2
of the Act and the Board’s order.
(Zeinan v. Village of Summit
(February 25,
1993), PCB 92-174, PCB 92—177 at 26.)
The Board
also instructed WSREC that it could not amend its petition during
the remanded proceeding because it had already done so in the
original proceeding.
If WSREC desired to further “amend” its
application, the Board advised WSREC to file a new application in
accordance with the Act.
WSREC appealed the Board’s decision to
the appellate court, which subsequently dismissed the case for
lack of jurisdiction on June 14,
1993.
(West Suburban Recycling
and Energy Center,
Inc.
v.
Illinois Pollution Control Board
(1st
Dist.
June 14,
1993),
slip op.
No.
1—93—1070.)
3
The consolidated appeals now before the Board seek review of
the Village’s latest decision on several grounds.
The first
petition (PCB 94-19),
filed by Michael Turlek, Lillian Smejkal,
and John Lathrop (Turlek et
al.),
asserts that the Village lacked
jurisdiction to render the December 6,
1993 decision, on the
grounds that the June 25,
1993 application was improperly filed
while the August
5,
1992 previous application approved by the
Village on October 19,
1992 was still pending.
The second
petition (PCB 94-21),
filed by Kay Kulaga and Alice Zeman
(Kulaga
and Zenian), challenges the fundamental fairness of the Village’s
procedures on six counts.
The third petition (PCB 94-22),
filed
by Citizens for a Better Environment, Patricia J. Bartleman,
Nanci Katz, and Michelle Schinits
(CBE et
al.),
asserts that the
Village’s decision must be reversed on the grounds that the
Village’s findings that the flood-proofing and need criteria of
Section 39.2
(415 ILCS 5/39.2(a) (4) and
(1), respectively) were
satisfied was against the manifest weight of the evidence.
LEGAL
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 the applicant has provided sufficient detail to
demonstrate compliance with each of the nine criteria can it
grant siting approval.
In this case, the Village found that
WSREC met its burden on all the criteria.
CR. at 5-9.)
Jurisdiction
Petitioners Turlek et
al.
challenge the Village’s siting
approval on jurisdictional grounds.
They contend that Section
39.2 does not give local governing bodies authority to entertain
two applications simultaneously from the same applicant for
alternative facilities at the same site.
They contend that the
Village,
in entertaining two such applications from WSREC,
acted
outside the limits of its authority under Section 39.2, and that
its decision was therefore void.
The Board’s authority to review a local governing body’s
decision on jurisdictional grounds is not specifically set forth
in the Act.
Rather, the right to review jurisdictional factors
is an inherent power of a reviewing adjudicatory body.
Decisions
by a unit of local government must comply with jurisdictional
prerequisites in order to vest the governing body with power to
act.
(See Kane County Defenders v. Pollution Control Board
(2d
Dist.
1985)
933
Ill.Dec.
918,
921,
487 N.E.2d 743; Browning—
Ferris Industries of Illinois v. Pollution Control Board
(5th
Dist.
1987)
516 N.E.2d 804,
114
Ill.Dec.
649
(notice requirements
4
are jurisdictional prerequisites which must be followed in order
to vest county board with power to hear a landfill proposal).)
Under Section 39.2,
a local governing body’s authority to
act in approving or disapproving a request for siting approval of
a RPCF is purely statutory.
Section 39.2(g)
dictates that the
procedures contained in Section 39.2 shall be the exclusive
siting procedures,
rules, and appeal procedures for new RPCFs.
Therefore,
failure to comply with the statutory provisions in
reaching a decision under Section 39.2 would render that decisi9n
void.
Fundamental Fairness
Petitioners Kulaga and Zeman have raised a number of claims
that the proceedings at the local level were not fundamentally
fair.
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.
Inc.
v. Pollution Control Board
(2d
Dist.
1983), 116 Ill.App.3d 586, 451 N.E.2d 555, 564 aff’d
in
part (1985)
1077 Ill.2d 33, 481 N.E.2d 64, 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.)
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 Manaaement 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 carte contacts,
prejudgment of adjudicative facts, and the introduction of
evidence are important, but not rigid, elements in assessing
fundamental fairness.
(Hediger v.
D
& L Landfill,
Inc.
(December
20,
1990), PCB 90—163.)
Standard Of Review: Manifest Weight Of The Evidence
Petitioners CBE et
al.
have challenged the Village’s
decision on two of the nine criteria it must consider in granting
or denying siting approval.
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.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; £i
E Hauling, 451 N.E.2d at 555.)
A
decision is against the manifest weight of the evidence
if the
5
opposite result is clearly evident,
plain, or indisputable from a
review of the evidence.
(Harris v. Day (4th Dist.
1983),
115
Ill.App.3d
762,
451 N.E.2d 262,
265.)
The Board,
on review,
is
not to reweigh the evidence.
Where there is conflicting
evidence, the Board
is not free to reverse merely because the
lower tribunal credits one group of witnesses and does not credit
the other.
(Fairview Area Citizens Taskforce v. Pollution
Control Board
(3d Dist.
1990),
198 Ill.App.3d 541,
555 N.E.2d
1178,
1184;
Tate v. Pollution Control Board
(4th Dist.
1989),
188
Ill.App.3d 79, 544 N.E.2d 1176,
1195; Waste Management of
Illinois,
Inc.
v. Pollution Control Board
(2d Dist.
1989),
187
Ill. App.3d 79,
543 N.E.2d 505,
507.)
Merely because the local
government could have drawn different inferences and conclusions
from conflicting testimony is not a basis for this Board to
reverse the local government’s findings.
File v. D&L Landfill,
Inc.
(August 30,
1990), PCB 90—94 aff’d File v. D&L Landfill,
Inc.
(5th Dist.
1991), 219 Ill.App.3d 897,
579 N.E.2d 1228.)
PCB 94-19 JURISDICTIONAL CHALLENGE BY TURLEK et
al
Petitioners Turlek et
al.
claim that the Village was without
jurisdiction to accept or rule on WSREC’s application for site
approval because the WSREC had two applications pending before
the Village at the same time.
They contend that the Village’s
authority to consider an application is limited to its statutory
grant of authority under Section 39.2,
and that the statutory
scheme “anticipates a single applicant who submits a single
request seeking approval for a single facility.”
(Turlek et al.
Br. at 12.)
They also assert that limiting applicants to one
application promotes the efficient use of judicial and
administrative resources, and avoids the public confusion which
could result from the filing of two or more applications.
(Turlek
et al.
Br.
at 14—15.)
A careful review of the timeline reveals that in fact the
two applications were not pending at the same time.
The
appellate court dismissed WSREC’s appeal on June 14,
1993.
WSREC’s second application was not filed until June 25,
1993.
Petitioners’ assertion that two applications were pending at
the same time in this proceeding is dependent on the assumption
that issuing a “notice of intent to file an application” in
accordance with the requirements of Section 39.2(b)
(415 ILCS
5/39.2(b))
initiates the “siting process,” and that initiating
this process is the same as having an application pending.
Using
this reasoning,
petitioners contend that the second application
should actually be considered to have been “pending” as of June
8,
1993, the date WSREC mailed notices of its intent to file a
new application to adjacent landowners.
This overlapped with the
appeal of the initial siting decision, which was dismissed by the
appellate court on June 14,
1993.
We reject this interpretation.
While proper notice is a precondition to a proper siting
6
application, the application is not pending until
it is itself
submitted for review.
Neither the language of the Act nor the
law cited by petitioner requires us to find otherwise.
Petitioners also argue that the two applications made the
process confusing to certain persons, which is,
in essence, an
issue of fundamental fairness.
While this may have been so, the
statute does not directly or indirectly prohibit the sequence of
the two applications in this case.
First,
in vacating the
Village’s approval of WSREC’s once amended application of August
5,
1992,
the Board specifically instructed WSREC that since it
had already amended its application in that proceeding,
if it
wished to further “amend” the application,
it was required to
submit an entirely new application.
The Board did so because
Section 39.2(c) of the Act prohibits more than one amendment to
a siting application.
Therefore, WSREC was required to submit
the new application on June 25,
1993 since
it sought approval for
a facility twice the size of that originally approved by the
Village.
We also note that Section 39.2(m)
does not apply to WSREC’s
June 25,
1993 application.
Section 39.2(m) prohibits an
applicant from submitting a siting application for a period of
two years after the disapproval of a substantially similar
application, where the initial application is disapproved
pursuant to a finding against the applicant under any of the nine
criteria set forth in Section 39.2(a).
Since the Village found
that WSREC satisfied all the statutory criteria concerning its
original application, and since the Board remand was not based on
failure to satisfy the statutory criteria, WSREC is not subject
to the two-year restriction on filing a substantially similar
application.
PCB 94-21
FUNDAMENTAL
FAIRNESS
CHALLENGES BY KULAGA
&
ZEMAN
Petitioners Kulaga and Zeman raise challenges to the
fundamental fairness of the proceedings before the Village on the
WSREC application on eight grounds.
In the context of
fundamental fairness, petitioners also raise as an issue whether
they were afforded due process in this appeal.
For the reasons
set forth below,
none of these challenges are successful.
Availability of the Documents Prior to Public Hearings
Petitioners Kulaga and Zeman claim that the proceeding
before the Village was fundamentally unfair based on
unavailability of documents both before and after the public
hearing.
These two petitioners claim in their petition that they
were denied access to information regarding WSREC’s application
prior to the public hearings.
(Kulaga and Zemari Petition for
Hearing,
Count VI.)
At the Board’s hearing on March
1, Kulaga
submitted Exhibit G which included copies of her Record
7
Inspection Request and letter to the Village Clerk, both dated
September 7,
1993.
In her letter, pursuant to the Freedom of
Information Act (FOIA), Kulaga sought documents which
memorialized agreements and meetings between the Village and
WSREC, but she specifically excluded a request for the siting
application filed by WSREC on June 25,
1993.
In general, Kulaga
was seeking documents pertaining to written and oral agreements
between the Village and WSREC; records of meetings between the
two; and records regarding the current environmental conditions
of the property on which the RPCF is to be sited.
In an attempt
to clarify at hearing the allegations made at Count VI of her
petition, Kulaga testified that she was not claiming that the
application itself was not available to her,
and that she had
received a copy of a host agreement.
(Tr. at 48—49.)
Petitioners did not pursue this issue in their post-hearing
brief.
Under Section 39.2(c)
of the Act, the applicant is only
required to submit to the Village a copy of its siting
application and any documents submitted to Illinois Environmental
Protection Agency (Agency).
The Village must then make these
documents available for inspection.
WSREC contends, and it is
not disputed, that it had not at that time submitted any
documents to the Agency.
Therefore, based on the facts presented
to the Board,
the only document which by statute the Village was
required to make available for inspection prior to the hearing
was the siting application.
As Kulaga’s testimony at hearing
demonstrated, petitioners do not dispute that the application was
available to them.
Therefore, we conclude that petitioners have
failed to prove the proceedings before the Village were
fundamentally unfair on the basis of this allegation.
The Village Board’s Failure to Attend the Public Hearing
Petitioners assert that the decision of the Village was
rendered fundamentally unfair by the fact that the members of the
Village Board did not attend the public hearing, but instead
relied on transcripts of the proceedings. The appellate courts
have affirmed the Board in finding that it is acceptable for the
decisionmaker to rely on transcripts of the public hearing in
rendering its decision.
(City of Rockford v.
County of
Winnebago,
542 N.E.2d 423
(111 App.
2d Dist.
1989)
;
Waste
Management of Illinois
v. Pollution Control Board
(1984)
123 Ill.
App.3d 1075,
79 Ill.Dec.
415,
463 N.E.2d 969
(“As long as the
entire record was available for review by the full county board
all members heard the case irrespective of their attendance.
“).)
We therefore find that failure of Village Board members to attend
the hearing did not render the proceedings fundamentally unfair.
8
Scheduling the Hearing During Normal Business Hours
Petitioners raise the issue that the hearings were held only
during normal business hours.
The Board has previously held that
hearings held during normal business hours meet the requirements
of fundamental fairness as long as they are consistent with the
published legal notice required under section 39.2(d)
of the Act.
(See Citizens for a Better Environment v. McCook (March 25,
1993), PCB 92—198, PCB 92-201.)
We find nothing in this case
which would have us depart from our prior rulings on this issue.
Therefore,
we find that hearings conducted during normal business
hours comport with fundamental fairness.
Limitation of Public Participation
Petitioners claim that fundamental fairness was denied due
to improper limitations on public participation.
They claim that
the hearing officer improperly paraphrased and eliminated cross—
questions posed to the applicant, that the hearing officer failed
to enforce the rules and procedures in a fair manner, and that
the Village misled the public through a newspaper article which
incorrectly stated that pre—registration was required for all
those who wished to testify.
For the reasons set forth below, we
find that each of these arguments fail.
Paraphrasing and Limitation of Questions
-
Petitioners
Kulaga and Zeman assert that the Hearing Officer incorrectly
paraphrased questions,
and refused to ask questions that were
submitted and directed to the applicant.
In particular,
petitioners refer to questions submitted by Ms. Vicki Jurka,
which they contend were improperly summarized or not asked at
all.
A similar issue was raised in Daly v. Village of Robbins
(July
1,
1993), PCB 93—52, PCB 93—54.
In Daly, petitioners
claimed that the hearing officer’s “arbitrary jettisoning of
cross-questions” violated their right of public participation and
made the hearing fundamentally unfair.
The Board held that
public participation was not thwarted so as to make the hearing
fundamentally unfair where the hearing officer informed
participants that duplicative or irrelevant questions would not
be asked, wrote the reason for not asking the question on the
form,
and where any questions not asked were more fully explained
in supplemental information supplied to the village.
In the present case, Rule 11 of the “Rules and Procedures of
The Village of Summit for the Conduct of Public Hearings
Pertaining to Applications for Approval of Regional Pollution
Control Facilities” governs cross—questioning.
It provides as
follows:
9
All cross-questioning shall be conducted through the
Hearing Officer who shall determine the relevancy and
duplication thereof.
Any participant shall submit
proposed cross—questions to the Hearing Officer who
shall direct relevant and non-duplicative cross—
questions to the applicable witness.
Participants are
urged to submit proposed cross—questions to the Hearing
Officer prior to the commencement of the public
hearing.
The Hearing Officer may allow direct cross-
questioning of
a witness if questions have been
submitted and determined to be relevant and non—
duplicative.
Cross-questioning of witnesses will be
permitted only during that period immediately following
each witness’s testimony.
If a list of cross—questions
is extensive or requires technical answers, the Hearing
Officer may permit the witness to answer the questions
in writing within 15 days thereafter with a copy of the
answers provided to the person presenting the cross—
questions and entered into the record of proceedings.
(R. at 52—53.)
This rule does not give the hearing officer unlimited
discretion in handling cross—questions.
When a question is
proffered,
the hearing officer must either ask the question, or
rule that it is irrelevant or duplicative.
Alternatively, the
hearing officer may ask the party to whom the question is
presented to respond in writing within 15 days.
However, the
Hearing Officer does not have authority to refuse to ask
submitted cross—questions without ruling they are irrelevant or
duplicative.
i
-
We find that the hearing officer’s paraphrasing of questio4Z~
did not result in fundamental unfairness.
Although a consistent
-
\\
pattern o~refusing to ask questions could render a proceeding
~fundament~lly unfair, we find no such pattern in this case
Although
s~everalquestions were paraphrased by the hearing
officer, all of the questions referred to in petitioners’ brief
and at the Board’s hearing were asked and responded to in some
/
manner.
(See Tr. at 161—171; R. at 92—93,
96—98,
148—150,
170.)
—1~terruptionand Intimidation
-
Petitioners Kulaga and Zeman
contend that the hearing officer, Mr.
Cainkar, and counsel for
the applicant,
Mr. Olian,
interrupted and intimidated several
members of the public who were testifying in opposition to the
application.
They point out that Alice
Zeinan was interrupted by
Mr. Cainkar and by Mr. Olian, and that Maryann Davidowski and Mr.
John Lathrop were both interrupted by Mr. Olian.
We find that
these interruptions did not limit public participation so as to
make the proceeding fundamentally unfair.
10
Mr. Cainkar interrupted Ms.
Zeman by saying the following:
I hate to interrupt you.
We are here,
and I understand
there might be other uses for the land,
but you need to
get more to the point.
There are many people wishing
to speak.
(R. at 322.)
We find that Mr. Cainkar’s interruption of Ms. Zenian’s
testimony was an attempt by him to exercise his authority as
hearing officer to manage the hearing and keep the testimony
relevant.
The Board has previously held that a rule limiting
parties to an initial five minutes of testimony was a reasonable
limitation which balanced the individual’s interest with
society’s interest in effective and efficient governmental
operation.
(Daly v. Village of Robbins (July 1,1993), PCB 93-52,
PCB 93—54; see also Waste Management of Illinois,
Inc~.v.
Pollution Control Board
(2d Dist.
1989),
187 Ill.App.3d 79,
543
N.E.2d 505,
507.)
The attempt of Mr. Cainkar to limit the
testimony of Ms.
Zeman imposed a far less severe restriction, and
we find that it was not an abuse of discretion.
Examining Mr. Olian’s interruptions of Ms.
Zeman and Ms.
Davidowski,
we find that his noting the length of Ms.
Zeman’s
testimony and characterizing Ms. Davidowski’s testimony as
“another detour” did not constitute intimidation.
We note that
neither party was prevented from completing her testimony.
Where
there
is a pattern of unchecked intimidation such comments might
be considered an attempt to limit public participation, but here
the evidence does not establish such
a pattern.
Petitioners also claim that Mr. Olian interrupted the
testimony of Mr. John Lathrop with a loud outburst, and that this
outburst forced Mr. Lathrop to cut short his testimony.
This is
not recorded in the transcript of the proceedings, although
respondents do not deny that it took place.
Such an outburst
might be considered an unwarranted limitation on public
participation,
again,
if it is part of a pattern of intimidation
which the hearing officer allows to occur.
Here, the evidence
does not indicate such a pattern of intimidation existed.
Furthermore, our review of the record indicates that the hearing
officer apparently responded by attempting to control the
situation and calm Mr. Olian.
(Tr. at 77.)
Further, we note that
there
is no direct testimony of Mr. Lathrop as to what occurred
and no evidence that he was intimidated or any indication about
what he was prevented from saying.
We conclude that the evidence
is insufficient to warrant a finding of intimidation resulting in
fundamental unfairness.
Incorrect Information in Newspaper Article
—
Petitioners
allege they were misled by an article published September 11,
11
1993
in the newspaper, Suburban Life.
This article stated that
persons intending to testify in opposition to the incinerator at
the September 29 hearing were required to register with the
hearing officer prior to
9 a.m. on September 28, when in fact no
such preregistration requirement existed.
The statement was
attributed to Village President Ronald Kluszewski.
The Board has previously examined this issue in Citizens for
a Better Environment v. Village of McCook (March 25,
1993)
PCB
92-198, PCB 92-201.
In NcCook, the Board stated:
The Board cannot make the fairness of the proceedings
before the Village dependent upon the accuracy of local
newspaper articles or newsletters.
.
.
.
Rather, the
Board finds that the fairness of the hearing,
in terms
of accurately giving notice of the time and place of
the hearing,
is governed by the legal notice required
to be published by the Act.
Id.
at 5—6.
The required public notice which was published in this
proceeding correctly stated the dates and times of the hearings,
and gave no indication that pre—registration was necessary.
(R.
at 50).
We therefore find that the newspaper article which
incorrectly stated there was
a pre-registration requirement did
not make the proceedings fundamentally unfair.
Village Decision Based on Flawed and Incomplete Record
Petitioners also claim that fundamental fairness was denied
since the decision by the Village was based on a flawed and
incomplete record.
(Kulaga and Zeman Br. at 21).
In support of
this claim of fundamental unfairness, petitioners raise again
their allegations discussed above about limited testimony and
questioning, and the errors in the transcript attributing
portions of the testimony to the wrong speakers.
WSREC responds
that these errors were not sufficient to render the proceeding
fundamentally unfair because they were not significant or causing
prejudice.
In suggesting this standard, WSREC cites cases
dealing with errors surfacing during appellate reviews primarily
in the context of criminal convictions.
(WSREC Br. at 36.)
In this opinion, we have already reviewed whether the
individual flaws cited by petitioners rendered the hearing
process fundamentally unfair and concluded that they do not.
The
inaccuracies and flaws in the record do not leave the record
insufficient on its face.
The record contains other,
additional
information sufficient for the Village to have .considered in
reaching its decision.
Examining individually and collectively
these claims in the context of whether the record before the
Village trustees was sufficient for it to render its decision, we
12
find that it was, and therefore the underlying process was not
fundamentally unfair.
Due Process Before the Board
Petitioners raise arguments concerning the availability,
completeness, and organizational state of the record after the
Village’s decision but before petitioner’s appeal to the Board.
Petitioners frame these arguments as fundamental fairness claims.
However, fundamental fairness is only applicable to procedures
before the local siting authority pursuant to section 40.1.
Therefore,
the Board will construe these arguments as due process
claims.
First, petitioners claim that the record was unavailable for
inspection after the Village’s December 6,
1993 decision
approving the application, and prior to the filing of their
appeal with the Board.
They claim that the unavailability of the
record prevented them from adequately preparing their appeal.
In their post-hearing brief, petitioners also argue that the
Village prejudiced their appeal rights in that the record filed
with the Board was so disorganized as to result in the record
being constructively unavailable to petitioners, and thus in
violation of due process.
(Kulaga and Zeinan Br. at 10.)
Petitioners also argue that the record was incomplete because of
errors in the transcript,
e.g.
attributing portions of testimony
to the wrong speaker.
(Kulaga and Zeman Br.
at 7.)
WSREC
responds that these errors were not sufficient to render the
proceeding fundamentally unfair because they were not significant
or causing prejudice.
In suggesting this standard, WSREC cites
cases dealing with errors surfacing during appellate reviews
primarily in the context of criminal convictions.
(WSREC Br.
at
36.)
At the Board’s hearing, Kulaga testified that during the
first week of December she submitted a FOIA request to the
Village to view the complete record on which its siting approval
was based during the first week of December.
(Tr.
at 15.)
Receiving no response, Kulaga telephoned the Village and was told
that the record was available at the Clerk’s office.
On December
30,
1993, she viewed the transcripts at the Clerk’s office but
was unable to locate any other evidence despite requests for the
same directed to the Clerk.
When she returned on January
4,
1994,
she found a second binder which contained post—hearing
comments.
When she returned on January
6,
1994,
she still did
not see any of the evidence submitted at hearing despite a
specific request for that information.
By letter dated January
6,
1994, Louis Cainkar, the Village attorney who acted as hearing
officer in its proceedings,
informed Kulaga that the entire
record had been transferred to his office to be prepared for
submittal to the Board.
Kulaga also testified that on January 6,
13
1994 Zeinan viewed a volume marked R—l which was “supposed to
contain all the other information.”
(Tr. at 16-18.)
Additionally,
at the Board’s hearing, Cainkar, acting in his
capacity as Village attorney
in cross—examining Kulaga, asked her
if she had called or written to him after receiving his letter.
(Tr. at 30.)
Summarized, her response was that she did not
because there was insufficient time to review the record at that
late date and prepare an appeal by the statutory deadline.
Kulaga and Zeman filed their petition on January
10,
1994.
In essence, petitioners argue that it is
a violation of due
process that the Village did not make available to her a complete
copy of the record below during the thirty-five days statutorily
allowed for her to appeal the decision which is based upon that
record.
While the Board agrees that the Village did not
cooperate in making that record available to her during that
time-frame, the Village’s obstructive behavior did not
sufficiently impair petitioners’ ability to appeal so as to
amount to a due process violation.
This conclusion is not based upon the Village’s behavior,
but is due to the Board’s practice in this type of appeal.
A
party’s pleadings are only required to give an opposing party
notice of the grounds upon which a claim is based.
A petitioner
is not limited to the facts alleged in the original petition to
support the claims contained therein.
Here, petitioners were
able to make their claims before the Board, and had an
opportunity to subsequently review the record to supplement their
original claims if they so desired.
Also, we have reviewed the record to determine the extent of
its disorganization and the errors
in the transcripts.
While we
agree with petitioners that portions of the record are not well
organized, we do not find that it is to a degree which would
prejudice their ability to prepare their appeal before us.
We
were able to sort the record out sufficiently to determine that
the errors were not significant, albeit with some difficulty
concerning the documents submitted by persons other than the
applicant.
We recognize,
as argued by the respondents, the
organized state of the record is unfortunately largely dependent
on the original state of the documents as submitted.
Finally, we
do not find that the errors in the transcript render the record
below fatally incomplete.
PCB 94-22
SITING CRITERIA CHALLENGES BY CBE et
p1.
As earlier explained,
Section 39.2 of the Act governs local
siting determinations.
Section 39.2(a)
lists nine criteria a
local government body is to consider when reviewing an
application for siting approval.
When reviewing challenges to
the siting approval on these types of substantive claims, the
14
standard of review the Board must apply is whether the finding
below were against the manifest weight of the evidence.
Petitioners CBE et al. assert that the Village’s decision
should be reversed on the grounds that its findings that the need
and flood—proofing criteria set forth
in Section 39.2(a) (1) and
39.2(a) (4) were met was against the manifest weight of the
evidence.
Section 39.2(a) (4): Flood-proofj~g
—
Section 39.2(a) (4)
provides that local siting approval shall only be granted if the
proposed facility meets the following criterion:
(4) the facility is located outside the boundary of the
100 year flood plain or the site is flood—proofed;
The Village’s decision granting site approval states that “the
facility is designed to be flood proofed.”
(R. at 7.)
In
challenging the Village’s determination that this satisfies
Section 39.2(a)(4),
CBE et
al.
cite Section 39.2(e)
of the Act
which states in pertinent part:
In granting approval for a site the county board or
governing body of the municipality may impose such
conditions as may be reasonable and necessary to
accomplish the purposes of this Section
.
.
Petitioners argue that the Village has only two choices: it must
either make a written determination that the site is not in the
100 year flood plain or the site is flood—proofed,
or
it must
condition approval on the applicant’s ultimate satisfaction of
the flood—proofing requirement.
Section 39.2(e) gives governing bodies the authority to
impose conditions on site approval, but
it does not require that
they do so.
Section 39.2(a)
allows the decisionmaking body to
determine that the facility “as proposed” will meet the statutory
criteria.
Therefore,
the Village was required to determine only
that the facility as proposed would either be outside the 100
year flood plain,
or that the site would be flood-proofed.
This precise issue has been addressed in
Daly v. Village of
Robbin~, (July
1,
1993)
PCB 93-52, PCB 93-54.
In Daly, the Board
upheld the Village of Robbins’ determination that Section
39.2(a) (4) was satisfied where the village ordinance granting
site approval stated the facility was “designed” to be flood-
proofed.
The Board rejected the petitioners’ argument that the
statutory language at paragraph
(a) (4)
of Section 39.2 mandates
that the Village find the facility j~flood-proofed, not merely
designed to be flood-proofed.
(~.
at 25.)
15
In this case WSREC submitted a flood—proofing plan as part
of its application
(R.
at 504
-
507), and the Village could have
found that the plan satisfied the requirements of Section
39.2(a)(4).
We therefore find that the Village’s determination
that the site is designed to be flood—proofed was not against the
manifest weight of the evidence.
Section 39.2(a) (1) Necessary to Accommodate Waste Needs
-
CBE et
al.
assert that WSREC’s need assessment failed to
competently assess the waste needs of the proposed service area,
because it relied on outdated landfill capacity data,
and
because it failed to make adjustments to reflect potential
increases in waste management paths other than land—filling, such
as source reduction, recycling and composting.
Petitioners
dispute the accuracy and validity of the studies relied on by the
Village in reaching its decision.
They claim that the
information contained in Solid Waste Needs Assessment for the
Cook CountY Planning Area is outdated, and the West Cook County
Solid Waste Management Plan contains information which supports
the conclusion that there is no immediate need for an
incinerator.
Petitioners claim that the Village ignored the
evidence they presented on source reduction, recycling and
composting,
and failed to consider the impact of other pollution
control facilities sited in the service area.
We find that none
of these factors demonstrate that the Village’s decision was
against the manifest weight of the evidence.
Section 39.2(a) (1) provides that local siting approval shall
only be granted
if the proposed facility meets the following
criterion:
(1) the facility is necessary to accommodate the waste
needs of the area it is intended to serve;
In construing this statutory provision, an applicant for
siting approval need not show absolute necessity.
(Clutts v.
Beaslev (5th Dist.
1989),
541 N.E.2d 844, 846; A.R.F. Landfill v.
Pollution Control Board
(2d Dist.
1988),
528 N.E.2d 390,
396; ~iI
v. Pollution Control Board
(3d Dist.
1984),
461 N.E.2d 542,
546.)
The Third District has construed “necessary” as connoting a
“degree of requirement or essentiality.”
(WNI v. Pollution
Control Board, 461 N.E.2d at 546.)
The Second District has
adopted this construction of “necessary,” with the additional
requirement that the applicant demonstrate both an urgent need
for and the reasonable convenience of, the new facility.
(Waste
Management
V.
Pollution Control Board,
(2d Dist.
1988),
530
N.E.2d 682,
689; A.R.F.
Landfill v. Pollution Control Board,
528
N.E.2d at 396;
WMI
v. Pollution Control Board,
(2d Dist.
1984),
463 N.E.2d 969,
976.)
The First District has stated that these
differing terms merely evince the use of different phraseology
rather than advancing substantively different definitions of
need.
(Industrial Fuels
& Resources/Illinois, Inc.
v.
Pollution
16
Control Board,
(1st District 1992),
227 Ill. App.3d 533,
592
N.E.2d 148,
156.)
The Village’s decision approving the facility states that
“the new regional pollution control facility
.
.
.
is necessary
to accommodate the waste needs of the area it is intended to
serve.”
(R. at 5.)
In support of this determination, the
decision cites the following:
1) the expert testimony of John L.
Kirby, who testified the facility is necessary to meet the needs
of the intended service area;
2)
Fifth Annual Report of Available
Disposal Capacity for Solid Waste in Illinois prepared by the
Illinois Environmental Protection Agency;
3) West Cook CountY
Waste Needs Assessment prepared for Northeastern Illinois
Planning Commission and West Central Municipal Conference;
4)
West Cook CountY Solid Waste Management Plan prepared for the
West Cook County Solid Waste Agency; and the Solid Waste Needs
Assessment for the Cook County Planning Area prepared for Cook
County.
(R. at 5.)
John Kirby, who was qualified as an expert witness,
testified on behalf of WSREC.
He testified that the facility is
necessary to meet the needs of the intended service area
(R. at
103).
Mr. Kirby testified that capacity in the service area will
be exhausted by the year 2000, and that even if the state
achieves its goal of recycling 15
of the waste stream, there
will still be an excess of seven million tons of waste to be
disposed.
(R.
at
105.)
The study Available Disposal Capacity for Solid Waste in
Illinois, Sixth Annual Report (January,
1993)
(R. at 648),
assesses the projected disposal capacity for solid waste in
sanitary landfills throughout the state.
It includes information
on recycling,
composting,
and incineration in making its
projections of available capacity.
The study Solid Waste Needs
Assessment for the Cook County Planning Area (June
1991)
(R. at
767,
795—799) assesses the solid waste management needs in
suburban Cook County for the period 1990-2010.
(3~~
at 770.)
It
includes information on recycling and incineration, and makes
waste stream projections for the years 1990-2010.
According to
its introduction,
this study
is intended to provide the basis for
determining the amount and type of disposal capacity needed to
serve the suburban Cook Count.y Area during the next 20 years.
(~)
We note that this
is the area of “primary focus” within
the intended service area.
(R. at 487
(siting application).)
The
other studies cited by the Village in its decision do not appear
in the record.
In response to petitioners’ claim that the Village failed to
consider factors other than landfill capacity, such as the impact
of recycling and composting, we find the record shows that there
was sufficient information in the record for the Village to find
that such factors had been adequately considered in the need
17
determination.
Mr. Gary Pierce testified that the facility would
only handle non—recyclable waste, and that it would therefore not
compete with these efforts.
There was also expert testimony that
the facility would be needed despite reductions in the waste
stream caused by increased recycling and composting.
We note
that the studies Available Disposal Capacity for Solid Waste in
Illinois,
Sixth Annual Report (January,
1993)
(R. at 648, 662—
667),
and Solid Waste Needs Assessment for the Cook County
Planning Area (June 1991)
(R. at 767,
795—799) both contain
information on recycling and composting,
and the Village could
have reasonably assumed that the projections contained in the
report reflected consideration of this data.
Furthermore, the
Village’s opinion states that the reports and testimony clearly
establish that there is a need for the facility even if there is
an increase in recycling and composting of municipal waste.
(R.
at 5.)
We find that this determination was not against the
manifest weight of the evidence.
Petitioners argue that the Village failed to consider the
evidence they presented,
and instead relied on reports
petitioners consider unreliable.
Under the manifest weight of
the evidence standard, the Board is not allowed to reweigh the
evidence.
Where there is conflicting evidence, the Board is not
free to reverse merely because the lower tribunal credits one
group of witnesses and does not credit the other.
(Fairview Area
Citizens Taskforce v. Pollution Control Board
(3d Dist.
1990),
198 Ill.App.3d 541,
555 N.E.2d 1178,
1184; Tate v. Pollution
Control Board
(4th Dist.
1989),
188 Ill.App.3d 79,
544 N.E.2d
1176,
1195; Waste Management of Illinois.
Inc. v. Pollution
Control Board
(2d Dist.
1989),
187 Ill. App.3d 79,
543 N.E.2d
505,
507.)
That is the crux of petitioners’ argument.
Nothing
in the record supports petitioner’s argument that their evidence
was not considered or that the reports relied upon were not
reliable.
Therefore, we cannot reweigh the evidence.
Petitioners’ reliance on A.R.F.
Landfill v. Pollution
Control Board
(Ill.App.
2d Dist.
1988),
528 N.E.2d 390,
for the
proposition that reliance on outdated information is grounds for
finding that the applicant did not establish need is misplaced.
In A.R.F., the local
government found that the applicant did not
meet the need criterion, and the Board and appellate court held
that this determination was not against the manifest weight of
the evidence.
Here, the Village has determined that WSREC did
meet the need criterion, and it is the Board’s duty to determine
whether this determination in favor of the applicant is against
the manifest weight of the evidence.
Petitioners also point out that the Village did not consider
the potential impact on the service area of several other
facilities that have been proposed but are not yet operational.
We find that while it would have been proper for the Village to
consider these proposed facilities (Waste Management of Illinoj~
18
Inc. v Pollution Control Board
(1988)
175 Ill.App.3d 1023,
1032
125 Ill Dec 524,
532 530 N.E.2d 682,
690), it was not necessary
that it do so
(Tate v.
Illinois Pollution Control Board (4th
Dist.
1989)
544 N.E.2d 1176,
136 Ill.Dec.
401, 421;
cf. Land and
Lakes ComPany v. Village of Romeoville,
(June 4,
1992) PCB 92—25,
134 PCB 53, 70).
Petitioners also point out that two of the studies recited
in the Village’s opinion are not contained in the record.
We
find that there was sufficient support in the record for the
Village to reach its decision exclusive of these two studies.
CONCLUSION
The Board has carefully considered each of the arguments
raised in the three petitions for appeal filed in this matter.
On the question of jurisdiction, the Board has found that two
siting applications were never simultaneously before the Village,
and therefore the Village had authority to consider the contested
application.
On the challenges to the fundamental fairness of
the proceedings before the Village, we have found none which
rendered the proceedings conducted by the Village to be
fundamentally unfair.
Finally, we have considered challenges
concerning two of the siting criteria contained in Section 39.2
of the Act, specifically the need and flood-proofing criteria,
and have not found the Village’s findings on either of these
criteria to be against the manifest weight of the evidence.
Therefore, the Board must affirm the Village of Summit’s siting
approval rendered on December
6,
1993.
This opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER OF THE BOARD
For the reasons expressed in the above opinion,the Board
affirms the Village of Summit’s December 6,
1993 decision
granting site location suitability approval for a new regional
pollution control facility to West Suburban Recycling and Energy
Center, Inc.
IT IS SO ORDERED.
Section 41 of the~EnvironmentalProtection Act
(415 ILCS
5/41
(1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill.
Adm. Code 101.246.
“Motions for Reconsideration”.)
19
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
,..-~-,
,
1994, by a
vote of
_______
I
P01.
ion Control Board
