ILLINOIS POLLUTION CONTROL BOARD
July 1,
1993
EUGENE DALY, JANE SCHMIT,
)
CARL
WILLIAMS,
SOUTH COOK
)
COUNTY
ENVIRONMENTAL
ACTION
)
COALITION,
)
)
Petitioner,
v.
)
PCB 93-52
)
(Landfill Siting Review)
VILLAGE OF ROBBINS, AND THE
)
ROBBINS RESOURCE RECOVERY
)
COMPANY,
)
)
Respondent.
CITIZENS FOR A BETTER
)
ENVIRONMENT,
Petitioner,
V.
)
PCB 93-54
)
(Landfill Siting Review)
VILLAGE OF ROBBINS, AND THE
)
ROBBINS RESOURCE RECOVERY
)
COMPANY,
)
Respondent.
DISSENTING OPINION
(by B.
Forcade):
I respectfully dissent from today’s action.
For two
reasons,
I would find that the procedures below were not
fundamentally fair.
Accordingly,
I would have remanded the
matter for a new hearing.
My preliminary concern relates to the pro—incineration
rally.
The location of the official Robbins public hearing, the
Robbins recreational training center, should have been content
neutral.
Instead, the Village allowed a pro—incineration rally
to be conducted in the same building immediately prior to and
during the published starting time for the public hearing.
The
rally included pro-incineration speeches by political figures as
well as distribution of hats, buttons with the acronym YIMBY,
“Yes,
In My Back Yard”, T-shirts, signs, and food.
(Tr.
163).
It is hard for me to believe that any sitting Illinois judge
would allow the use of the judge’s courtroom for a similar rally
2
on behalf of one litigant just before the opening of a civil
trial.
When presented with a somewhat similar issue, this Board
found it unacceptable that several individual local government
decision makers wore buttons regarding landfill siting:
Consequently, the Board must look to see
whether
there
is
evidence
that
a
decision
maker
had
adjudged
the
City’s
application
prior
to completion of
the hearing process.
After
reviewing
the
record,
including
information which was brought out at the PCB
hearing,
the Board
finds
only one
incident
which
would
clearly
indicate
bias.
Specifically,
the Board
is referring to
the
instance when four County Board Members wore
anti-landfill buttons at hearing.
It
is the
duty of the County Board Members to listen to
the evidence with an open and impartial mind
and make
a
decision
as to the six criteria
based
upon
that
evidence.
The
wearing
of
these
buttons was
certainly not
in
keeping
with the quasi-judicial
role that the Board
Members must carry
out.
For these reasons,
the
Board
finds
that
County
Board
Members
Bell,
Barnard,
Connelly,
and
Giorgi
were
biased
against
site
location
suitability
approval for the City’s proposal.
It follows
then
that
these
Board
Members
are
to
be
disqualified
from
any
subsequent
decision
making
process
with
regard
to
the
City’s
proposal.
City
of
Rockford
v.
Winnebago County
Board,
PCB 87—92
(November 19,
1987).
Here,
the official decision maker, the Village of Robbins,
authorized or allowed a pro—incineration rally in the same room
at the same time as scheduled for the public hearing.
I do not
believe such conduct is fundamentally fair; nor is affirming such
conduct consistent with prior Board precedent.
My second area of concern is the time and procedural
limitations imposed on public participation by the
local siting
ordinance.
In Zeman v. Village of Summit, PCB 92-174
(February
25,
1993), the Board stated,
“The Board notes that it is not
ruling today on whether having only one day of hearing, which
might run until
late at night,
could alone constitute fundamental
unfairness.
That issue is not presently before us.”
Under the
circumstances presented here today,
I am prepared to hold that
having only a single day of hearing in this case did constitute
fundamental unfairness.
3
First,
it should be noted that a formal written request was
made, well
in advance of hearing for addition~lhearing dates.
In a December 10th letter, Chicago Legal Clinic wrote:
“Because
of
the
importance
of
the
public
hearing
and
the
difficulties
posed
by
the
December
22nd
date
for
many
people,
I
am
formally requesting that an additional hearing
date be established.
I am not requesting that
the December 22 date be abandoned.
Instead
I
am
requesting
that
in
the
interest
of
fundamental
fairness
an
additional
hearing
date be established”.
(Tr. 291—292)
The Robbins hearing officer indicated that he lacked the
authority to schedule additional hearings.
(Tr. 292).
In
addition, the public hearing ordinance (Resolution No.
12—2-92,
Rec. 001804-00180) established the starting time of hearing at
6:30 p.m.,
established the order of presentation, established no
limitation on the presentation of the applicant,
and established
a
5 minute maximum time limitation on the presentation of any
other participant.
Of equal importance is what the ordinance did not do.
The
ordinance did not establish
a party status where those seeking
complete participation might be granted unlimited presentation
time similar to that granted the applicant.
There was only one
“litigant”
in this adjudication before the Village of Robbins
-
the applicant.
All others were relegated to the role of 5 minute
commentor.
It is of little consequence to me that the time
limitation was not enforced absolutely,
or that some chose to
exceed the limitation.
People who play by the rules in life
should be entitled to fundamental fairness.
Here, the rules said
5 minutes.
As a consequence of the arbitrary decisions made by Robbins
regarding the number of hearing days,
order of presentation, and
time limitations, public participation was greatly curtailed.
The record before this Board is replete with instances of
individuals who testified that they were forced to curtail or
forego their presentation in order to meet the 5 minute limit.
Indeed, testimony by participants did not start until nearly
midnight
(Tr.
174), and did not conclude until after 3:30 in the
morning.
(Tr.
142).
I do not consider a proceeding which restrains all but the
applicant to a few minutes of presentation in the wee hours of
the morning to be fundamentally fair.
I would have remanded for
a fundamentally fair proceeding.
Accordingly,
I dissent.
4
~
r
Bi
1
S.
Fc~rcade
Board Member
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Dissenting Opinion was filed
on the
7”~
day of
_________________,
1993.
Dorothy M.
Gu,p~h, Clerk
Illinois Pol?~tionControl Board