ILLINOIS POLLUTION CONTROL BOARD
February 25,
1993
ALICE
ZEMAN,
et al.,
)
Petitioners,
v.
)
PCB 92—174
)
(Land Siting Review)
VILLAGE OF
SUMMIT
and WEST
)
(Consolidated with PCB 92-177)
SUBURBAN,
RECYCLING
and
ENERGY
CENTER,
Inc.
Respondents.
DONNA QUILTY,
)
)
Petitioner,
)
v.
)
PCB 92—177
)
(Land Siting Review)
VILLAGE
OF SUMMIT and WEST
)
(Consolidated
with
PCB
92-174)
SUBURBAN
RECYCLING and
)
ENERGY
CENTER,
INC.,
)
)
Respondents.
KEITH
I.
HARLEY
APPEARED
ON
BEHALF
OF
ALICE
ZEMAN,
TONY
BERLIN,
RICHARD
ZILKA,
MICHAEL
TURLEK
AND
KEVIN
GREENE
KENNETh
PAUL
DOBBS
APPEARED
ON
BEHALF
OF
DONNA
QUILTY
LOUIS
F.
CAINKAR
LTD.
BY
VINCENT
CAINKAR
APPEARED
ON
BEHALF
OF
THE
VILLAGE
OF
SUMMIT
SIDLEY
AND
AUSTIN
BY
ROBERT
N.
OLIAN
AND
LAURA
L.
LEONARD
APPEARED
ON
BEHALF
OF
WEST
SUBURBAN
RECYCLING
AND
ENERGY
CENTER,
INC.
OPINION
AND
ORDER
OF
THE
BOARD
(by
a.
Anderson):
This
matter
comes
before
the Board on two petitions for
hearing that were consolidated by
the
Board
on
November
19,
1992.
The first petition, brought by Alice Zeman, Tony Berlin, Richard
Zilka, Michael Turlek, and Kevin Greene (Zeman), was filed on
November 6,
1992.
The second petition, brought by Donna Quilty
(Quilty), was filed on November 9,
1992.
The respondents in both
petitions were the Village of Summit
(Summit) and the West
Suburban Recycling and Energy Center,
Inc.
(WSREC).
Zeman and
Quilty’s third party appeals contest Summit’s October 19,
1992
grant of local siting approval to WSRIC for a regional pollution
control facility pursuant to what is commonly called an “SB 172”
proceeding.
0139-0559
2
ISSUES
ON
APPEAL
The Zeman petitioners appeal on the basis of
a) fundamental
fairness regarding the availability of the application and notice
of an amended petition, and b) criteria #1 and #4 regarding need
and flood plain issues respectively,
of Section 39.2(a) of the
Environmental Protection Act (Act).
(Zeinan Pet.,
PCB 92-174,
November 6, 1992.)
Quilty appeals on the basis of fundamental fairness
regarding her’s and others’ ability to participate in Summit’s
hearing.
(Quilty Pet., PCB 92—177, November 8, 1993.)
The Board notes that neither it nor the petitioners have
raised any issues as to jurisdiction.
PROCEDURAL BACKGROUND
On May 7,
1992,
WSREC submitted to
the
Village Clerk of
Summit its application requesting local siting authority for a
municipal waste to energy facility, to generate electricity from
the incineration of municipal wastes.
(C 0001-0056; Summit
H.•O.
Exh.
1.)1
On August
5,
1992, WSREC filed an amended application, which
was introduced as an exhibit five days later at the start of
Summit’s
public
hearing.
(C 00072—00136; C 03006, Pet.
Exh.
1.)
summit
started its public hearing at 10:00 a.m. on August
10,
1992, and concluded it at 2:30 a.m. on August 11,
1992;
a
thirty day comment period, further extended until September 23,
1992,
followed.2
Summit approved WSREC’s application on October
19,
1992.
(C 05000—05008, Summit ordinance.)
1
As regards the Summit proceedings, this opinion will
generally follow the pagination and identification in the January
5,
1993 Index of Record on Appeal, e.g., C
,
Summit H.O.
Exh._.
As regards the Board proceedings,
e. g., the transcript
will be identified as Tr. at
____;
Board H.O. Exh._.
2
On August 17,
1992,
Summit
held a joint hearing with
the Village of McCook to address other component facilities.
The
waste to energy facility is entirely in Summit.
It is a
component located on a thirty—six acre site that includes land in
the Village of McCook.
The other components include facilities
for recycling, waste processing
(transfer station), composting
and fuel preparation.
(C 03013.)
We note that the local siting
approval by the Village of McCook has also been appealed, and is
pending before the Board in another consolidated proceeding, PCB
92—198
and
PCB
92—201.
Of 39-0560
3
The
Pollution
Control
Board
(Board)
held
hearings
on
January
7 and
8,
with
about
60
persons in attendance,
and another on
February 8,
1993, with about 20 persons in attendance.
Post
hearing briefs were filed by petitioners Zeman and Quilty on
February 1,
1993.
The respondent WSREC filed separate briefs for
PCB 92-174 and PCB 92-177 on February
8,
1993.
Summit did not
file a brief.3
STATUTORY
BACKGROUND
Public
Act
82—682,
commonly
known as SB—172,
is codified in
Sections
3
•
32,
39(c),
39.2, and 40.1 of the Act
•
It vests
authority in a county
board
or municipal governing
body
to
approve or disapprove the local siting request for each new
regional pollution control facility.
These decisions may be
appealed to the Board in accordance with Section 40.1 of the Act.
The Board’s scope of review encompasses three principal areas:
(1)
jurisdiction;
(2) fundamental fairness of Summit’s site
approval procedures; and
(3) the statutory criteria that the
applicant’s facility must meet.
Pursuant to Section 40
•
1(a) of
the Act, the Board is to rely “exclusively on the record before
the county board or
the
governing body of
the
municipality” in
reviewing the decision below.
The Board shall include in its
consideration the “the written decision and reasons for
(Summit’s
decision, the transcribed record of the hearing held
by
(Summit,
and the fundamental fairness of the procedures used
by Summit
in reaching its decision.
Section 39.2 of the Act presently outlines nine criteria for
site suitability, each of which must be satisfied
(if applicable)
if site approval is to be granted.
in establishing each of the
nine criteria, the applicant’s burden of proof before the local
decisionmaker is the preponderance of
the
evidence standard.
(Industrial Salvage v. County of Marion (August
2,
1984), PCB 83—
173,
59 PCB 233,
235, 236.)
On appeal, the Board must review
On December 17,
1992, in response to Summit’s December
8,
1992 motion for reconsideration, the Board found: that the
petitioners were a citizens’ group pursuant to Section 39.2(n) of
the Act and thus exempt from payment of a fee to
Summit
for
preparing the record on appeal; and that Summit must file the
record in accordance with Board requirements.
Also,
on December
17,
1992, the Board denied WSREC’s December
4,
1992 motion to
diznmiss
petitioner Quilty, finding that she was a participant at
the Summit hearing.
On January 7,
1993, The Board denied the
petitioners’
December
23,
1992
motion
to
sanction,
finding
that
the record had been filed; however, the Board also ordered the
Village to cure its failure to file a proper motion instanter in
filing the record and to file a certification of the record by
filing the motion and certification at the Board’s January 7,
1993
hearing.
Of
39-0561
4
each
of
the
challenged criteria based upon the manifest weight of
the evidence standard.
(See McLean
CountY
Disposal, Inc.
v,
County
of
McLean
(4th
Dist.
1991),
207
Ill. App. 3d 352, 566
N.E.2d
26;
Waste
Manaaement
of
Illinois.
Inc.
v.
Pollution
Control
Board
(2d
Diet.
1987),
160
Ill.
App.
3d
434,
513
N.E•2d
592;
E
&
E
Hauling
V.
IPCB,
116
Ill.
App.
3d
586,
451
N.E.2d
555
(2d Dist.
1983), aff’d in part 107 Ill.2d 33,
481 N.E.2d 664.)
A
decision is against the manifest weight of the evidence if the
opposite result is clearly evident, plain or indisputable from a
review of the evidence.
(Harris v. Day (4th Diet.
1983),
115 Ill.
App. 3d 762, 451 N.E.26 262,
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. IPCB (3d Dist.
1990),
198 Ill. App. 3d 541,
555 N.E.2d 1178,
1184; Tate v. IPCB
(4th Dist.
1989),
188 Ill. App. 3d 994,
544 N.E.2d 1176,
1195;
Waste Management of Illinois. Inc.
v. IPCB (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 Diet.
1991), 219 Ill. App.
3d 897,
579 N.E.2d 1228.)
However, where an applicant made a prima facie showing as to each
criterion and no contradicting or impeaching evidence was offered
to rebut that showing, a local government’s finding that several
criteria
had
not
been
satisfied was against the manifest weight
of
the
evidence.
(Industrial Fuels
&
Resources/Illinois.
Inc.
v.
IPCB
(1st Diet.
1992),
227 Ill.App. 3d 533,
592 N.E.2d 148.)
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 Diet.
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 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.
(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 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
parte
contacts,
prejudgment
of
adjudicative
facts,
and
the
introduction
of
evidence
are
0139-0562
5
important,
but
not
rigid,
elements
in assessing fundamental
fairness.
(Hcdiger
V.
D &
L
Landfill.
Inc.
(December
20,
1990),
PCB 90—163.)
TESTIMONY AT BOARD HEARING
The bulk of the testimony at the Board’s hearing was devoted to
issue of fundamental fairness.
January 7.
1993 hearing day.
Petitioner Michael Turlek testified that he became aware of
the availibility of the WSREC
.
application (application),
as well
as the procedural rules for the conduct of the hearing, from
reading a July 9,
1992 legal notice in the Desplaines Valley
News.4
(Tr. at 27.)
On the following day, July 10th at about
4 p.m., he went to
the Summit village hail service window, identified himself, and
requested copies of the application and procedural rules.
The
person on duty was unable to produce copies, so Mr. Turlek
followed her instructions to return the next morning at 9:00
a.m., at which time he again identified himself to her.
After
she gave him some documents and recorded his.,name, Mr. Thrlek
left.
After taking time first to perform a few chores, Mr.
Turlek looked at the documents and found that they were the rules
of procedure and an unsigned resolution for a joint public
hearing, but not the application.
(Pr. at 27—32.)
Upon promptly returning to the village hall and informing
the same person on duty of the omission, Mr. Turlek was invited
to accompany the Mayor into the Village Clerk’s office.
Upon
telling the Village Clerk that he had failed to get the
application, Mr. Thriek testified that he was told by the Village
Clerk that he had received everything that the state law said he
was entitled to.
Mr. Thrlek, in response, referred to the legal
notice.
In that the Village Clerk did not have a copy of the
newspaper, Mr. Turlek proceeded home to get his copy and, by
agreement, phoned the Village Clerk and read over the phone the
The July 9 notice stated in pertinent part:
Copies of the siting application and the procedural rules
for the conduct of the hearing are available for inspection
and copying at the office of the Village Clerk of the
Village of Summit, 5810 South Archer Road,
Summit, Illinois
60501—1493.
(C00057; H.O. Exh.
2.)
We also note that the Desplaines Valley News published the
same legal notice on July 16 and July 23,
1992.
(C 00058,
59; H.
0.
Exh. 2.)
0139-0563
6
legal
notice
relative
to
the
availability
of
the
siting
application.
The
Village Clerk again responded that he had
already received everything he was entitled to.
(Tr. at 32-34.)
Mr. Turlek then testified that he sought information at the
libraries in Riverside and Lyons but that it was general, not
specific as it would have been in the siting application.
At the
Summit
hearing, Mr. Turlek in his testimony included a statement
that on three separate occasions he was denied both visual and
copying access to the application, and submitted an affidavit to
that effect during the post-hearing 30 day comment period.
(Pr.
at 35,36; C 03407; C 05039,
05040).
Mr. Turlek testified that after the Summit hearing, toward
the latter part of August, he received a copy of the amended
application from Mr. Tony Berlin, a person he had been working
with.
He asserted that be had earlier been unaware of any
amendment to the application and that, bad he known about the
flood plain issue that was the primary issue addressed in the
amended application, he would have testified about it.
(Tr. at
37—40.)
Next to testify was petitioner Alice Zeman.
She testified
that she first learned from a newspaper on May 7,
1992 of a
proposed incinerator and composter, and learned from a legal
notice of the Village of Summit that an application was available
at the Village Clerk’s office.5
On July 20, 1992,
at about 11:40
a.m., Ms. Zeman went to the Village Clerk’s office and requested
the application.
As she was then instructed to do, she filled
out a request for records (for which she still had a receipt).
She saw no copy of the application and the person on duty did not
offer to let her inspect it.
She was told that the Village
Clerk’s office would either phone her or send the application by
mail.
On July 22,
1992, she received in the mail a
SummitfMc/Cook joint hearing resolution, Summit’s legal notice
and the procedural rules for the August 10, 1002 hearing, but not
the application.
(Tr. at 41-49.)
Ms. Zeman attended the Summit public hearing, arriving at
7:30 a.m.,
prior to the scheduled 10:00 start of the hearing.
As
a member of a citizen’s group, referred to as “SCORE”, she wanted
to utilize posters, etc., and seek signatures on petitions
against the incinerator.
She had included in her hearing
testimony a statement that she never received the application
information, and later submitted an affidavit to that effect
The
legal notice that Ms. Zeman appears to be referring
to is the “Village of Summit Legal Notice”
,
where,
in the last
paragraph, the notice states that the siting application and the
procedural rules are available for inspection and copying at the
Summit
Village Clerk’s office.
(C 00062; H.O. Exh.
4.)
0139-056L4
7
during
the
comment
period.6
She testified that no-one from her
SCORE organization had a copy of the application, nor did those
in another organization referred to as “WIN”, prior to the
commencement of hearing.
She testified that she has never at
any time since received a copy of the application.
Regarding the
amended application,
she testified that she did not hear a
statement at the very beginning of the hearing about an amended
application.
The first she learned that an amended application
was available was from Mr. Tony Berlin on August 31,
1992~.
She
did not receive or seek out a copy of the amended application
thereafter.
(Pr. at 49—58; C 03235; C 05035.)
Petitioner Richard Zilka testified that he read about the
proposed project and the availability of the application in the
legal notice in the July 9, 1992 edition of the Desplaines Valley
News (See C 00057.)
He went to the Village Clerk’s office with a
colleague, Frank Schreiber, and requested the application.
The
person on duty told him she had no applications.
After Mr.
Zilka
told her about the information in the newspaper, she referred him
to the Mayor’s office.
A person in the Mayor’s office
confirmed
that there were no documents, and suggested he contact ABB.7
Mr.
Zilka did not contact ABB.
(Pr. at 58—60,
64.)
Mr.
Zilka attended the hearing from “morning to night”,
except for a rest stop period in the afternoon.
(Pr. at 61,
67,68).)
He arrived at 8:00 a.m. and was one of the first or
second people to sign a card to testify and didn’t get called
until about 1:30 a.m. the following morning.~ He stated that the
hearing officer was shuffling the cards.
He submitted an
affidavit concerning his experiences during the comment period.
(C 05038.)
Regarding the amended application, he testified that
he did not hear reference to the amended application.
He
asserted that he was in attendance at the hearing during the
entire time,
but from where he was sitting he could hardly hear.
Ms.
Zeman at hearing testified that she learned of the
application from a legal notice in the Thursday, July 16, 1992
edition of the Desplaines Valley News.
(C 03235; also see 00058.)
ABB stands for Asea Brown Boveri, whose headquerters
are in Zurich, Switzerland.
A subsidiary of ABB is Combustion
Engineering, and ABB Resource Recovery Systems (ABB RRS)
is a
unit of Combustion Engineering.
ABB RRS proposes to build and
operate the waste—to—energy plant.
The recovery center is to be
developed and managed by WSREC.
(C 03007—03009; 00074,75.)
8
Mr. Richard Zilka is referred to as Mr. “Richard Sucka”
in the Summit hearing transcript.
Mr. Zilka testified at that
hearing that he was the first to sign up and had to wait ten
hours.
The transcript indicated that the “Oons” testimony
started in the afternoon of August 10.
(C03365,66.)
0139-0565
8
He did not know about an amended application until told about it
some two months after the hearing at one of the WIN meetings.
lie
asserted that he didn’t know of anyone at WIN who had a copy of
the
application or the amended application before the hearing.
(Pr. at 61—68.)
Mr. Frank Schreiber testified that he accompanied Mr. Zilka
on his July 20,
1992 attempt to get the application, arriving at
the village hall about 11:00 a.m.
He testified that he
accompanied Mr.
Zilka to the Mayor’s office, where the person
present told Mr.
Zilka that she didn’t think they had a copy and
that he would have to get a copy from ABB.
(Pr. at 69-71.)
Petitioner Kevin Greene, who is employed by Citizens for a
Better Environment, an organization that advises community groups
that are members of the Waste Idea Network,9 testified that he
learned about the availability of documents from a notice in the
Desplaines Valley News that had been sent to him.
On July 13,
1992 he went to the Village Clerk’s office and orally asked a Ms.
Daniels, an employee of the office, to inspect the application.
She asked him to fill out a record inspection form and then
indicated that the application was not available for review at
that time.
She told Mr. Greene that he would probably be hearing
from the village clerk when he returned latèt~that afternoon to
make arrangements to inspect the documents.
After about four or
five days went by without hearing anything, he called the Village
Clerk’s office and left a message.
The Village Clerk never
respOnded.
About seven days later he received in the mail a copy
of a siting hearing resolution and a copy of the procedural
rules, but no copy of the application and nothing regarding its
availability.
He had no further contact with anyone from Summit.
When his phone calls were not returned and he failed to receive a
copy of the application in the mail, he bacame nervous about
having nothing to review in time for the hearing.
He started
calling the community activists for a copy of the application,
and several said they were having trouble getting copies.
In
about a couple of weeks he was able to get a copy of what
appeared to be the siting application from Ms. Barbara Malarky, a
copy which which she had received from ABB.
Mr. Greene asserted
that he felt at a disadvantage absent looking at the documents at
the village hall because he did not know if any supporting
documents or exhibits, such as those prepared by expert witnesses
or consultants had also been filed.
At the time of hearing he
still did not know.
He said that, based on his prior experince
Mr. Greene stated that he provides technical assistance
involving solid waste issues in western Cook County and the
surrounding counties,
including participation in siting hearings,
and is an employee of Citizen’s for a Better Environment.
(Tr.
at
73—75.)
0139-0566
9
with siting hearings, he risked not being able to fully
understand and rebut the applicant’s arguments (Pr. at 74-89.)
Mr. Greene first attended the Summit public hearing from
about 9:30 a.m. until
2 p.m. on August 10,
1992. Re asked the
hearing officer when the public would be able to testify, and was
told it probably would not occur until after dinner, about 6:30,
7:00.
Mr. Greene left and returned about 5 or 5:30 and testified
around 9 or 9:30.
He included in his Summit testimony that he
had requested, but had not been provided, a copy of the
application by the Village Clerk’s office, and of his uncertainty
about the completeness of the document.
He also submitted an
affidavit in the post-hearing comment period.
(Pr. at 81-83; C
03241,
03242; C 05041.)
Regarding the amended application, Mr.
Greene stated that at the Summit hearing he had an impression
that an amended application was being filed that day, but was
unaware that it had been filed five days earlier.
He got a copy
of the amended application four days after the hearing from the
Village Clerk’s office; he asked to inspect it, but there were a
pile of about 5—7 copies and he was given one free of charge.
(Pr. at 82,
83,
87., 96,
97.)
Petitioner Pony Berlin testified that,
after reading in a
legal notice in early July about the availability at the village
hall of a copy of the application or for inspection, he went to
the Village Clerk’s office and requested a copy, as well as a
copy of the hearing procedural rules
•
After filling out an
information form given by the person on duty, she said that a
copy was not available and one would be mailed to him.
Mr.
Berlin stated that he received a copy in the mail of the Summit
legal notice---which stated that copies of the application and
procedures are available———,
a resolution of Summit approving a
“joint local siting”
(Pr. at 114.)b0, and the procedural rules.
Mr. Berlin called the village hall inquiring of a clerk on duty
whether this was all he would receive, and she said that that was
all he would receive.
Mr. Berlin submitted an affidavit
concerning this situation during the post—hearing comment period.
(Tr. at 111—115;
C 05037.)
Mr. Berlin attended the Summit hearing but did not testify.
At hearing he heard some reference to another version of the
application.
In the latter part of August he went to the village
hall on another matter, saw a notice on the wall of the
availability of a “modified version” of the application
(Pr. at
117.), and filled out a request for it.
However, about a week
later, he found out that he had been given the original May 7,
1992 application.
He returned to the village hall to get the
updated version and was told that it was unavailable but a copy
would be made for him.
He received a copy of the amended
10
Presumably referring to the August 17 joint hearing.
0139-0567
10
application
within
the
following
week.
He
stated
that
he
did
not
submit
post-hearing
comment,
but
that at that time there was not
much
time
left
before
the
deadline.
(Tr. at 115—121)
Mr. Berlin was on the citizen’s fact—finding committee and
t000estified that he was never aware of anyone on that committee
having a copy of the application.’1
(Tr. at 121-126.)
Petitioner Donna Quilty testified that she had been “in and
out” during the day of the Summit hearing
(Pr. at 157), but
understood that she was supposed to testify in the evening
session.
She returned to the hearing shortly after work, at
about 8:00 p.m. and the auditorium was full.’2
She was
instructed to fill out a form for those wishing to speak in
opposition to the incinerator.
At about 8:45 p.m. the Village
Clerk started to read from a report,
including, she said,
a
considerable portion devoted to the issue of composting, which
upset her because the hearing did not concern composting.
Ms.
Quilty stated that the Village Clerk’s testimony had not
concluded when she left at about 10:00-10:30 p.m. to return to
her children, and that he was at that time talking about a
composting facility.
She said that the hearing officer did not
state how long the reading of the report would take.
During the
reading of the report, Ms. Quilty stated that objections from the
audience started,
first quietly and then becoming boisterous when
there was no initial response from the hearing officer.
She
stated that at that point security people were brought in, and
the hearing officer stated that if they didn’t stop they would be
ushered out.
(Tr. at 126—134,
151,
157.)
Ms. Quilty testified that thereafter many persons left
during the Village Clerk’s testimony.
She stated that there was
no announced order of “con” testimony,
or whether other reports
might then be read.
Ms. Quilty testified that had it not been
Mr. Berlin is apparently referring to the fact-finding
committee which prepared a report titled “Citizen’s Fact—finding
Committee Report Regarding the West Suburban Recycling, and Energy
Center.
Village
of
Summit”.
This
committee,
of which Mr. Berlin
was a member
(C 00604), and
its
report,
is alluded to throughout
the testimony.
This is the report that assertedly was presented
(no transcript was made)
by the Village Clerk in his testimony at
hearing,
as will be discussed later.
The report is a compilation
of committee and three subcommittee reports prepared by 12 Summit
residents appointed by Summit’s Mayor.
The report is supportive
of the WSREC’s proposal.
The report is contained in the record
at C 00673—00708.
12
It was Summit’s counsel’s estimate
(at the Board
hearing) that the auditorium holds approximately 250 to 300
persons.
(Tr. at 165.)
0139-0568
11
for
the
Village Clerk’s testimony she would have stayed, or would
have made arrangements to stay if she had been informed how long
the Village Clerk would take..
She felt that a “stall tactic”
(Tr. at 164.) was being used.
She acknowledged that,
if the
Village Clerk had not spoken, the hearing would have ended at
11:00 p.m.
While this after she left, she felt that it would
have been only a half hour difference.
Ms. Quilty stated that
she only intended to speak for five minutes in opposition to the
proposed incinerator.
She did feel it would be not fruitful to
file post—hearing comments, and she filed none.13
(Pr. at 134—
145,
163.)
Upon being shown portions of the citizen’s fact-finding
report,
(See footnote 10);
(Pr. 152—157), Ms. Quilty disputed
t1~atwhat she was shown was what the Village Clerk said at
hearing.
She stated that:
What I saw was (the Village Clerk) with a stack of papers
that he was reading, and I was not the only one who felt..
that he started to get into irrelevant materials, and it had
to be more than what I saw on those pieces of pager
(sic),
because there is no way that myself, that a whole room full
of people would have been objecting to anything of what you
showed me,
if that’s all he was reading.
There’s no way.
(Pr. at 156.)
Ms. Quilty testified that she remembered the material she
was just shown, but remembered much of it as being irrelevant.
(Pr. at 164.)
Ms. Kathleen Kalaga testified that she arrived at the
auditorium at 7:00p.m., having been told that this was the time
for those opposed to the incinerator to speak.
She testified
that when the Village Clerk was reading his report, she was aware
that the court reporter was not recording.
She stated that the
Village Clerk read at least 45 minutes, that many in the audience
were getting restless, then about 15-20 started loudly objecting
-
including some who had been there since 10:30 a.m.
They were
objecting to his talking about composting or recycling, when they
were there for the incineration facility.
She observed people
leaving.
She said no indication was given as to how long the
Village Clerk would read the report.
(Pr. at 169—176.)
Ms. Kalaga had testified before the Village Clerk’s
testimony.
She stated that she felt,
as a resident of Summit,
embarrassed for her town because of what was a “stall tactic” to
13
Ms. Quilty was asked,
and so responded,
to state what
she would have said at the Summit hearing.
(Pr. at 145-151.)
The Board will take no notice of this testimony as it is
irrelevant.
0139-0569
12
get people to go home.
(Tr. at
178.)
She stated that the hearing
officer had stated that there would be no special order in
which
the people would be called, and that some who had put their cards
in first thing in the morning were not called on until after
midnight.
Ms. Kalaga testified at the Summit hearing.
(Pr. at
176—179,
182,
183.)
Ms. Sue Riqqo, who stated that she is not a member of any
organization, had been at the hearing for five hours in the
morning.
Having inquired of the hearing,officer if there was a
special time slot for senior citizens, she was told that there
was not such a time, but that all could speak at 7 p.m.
When she
returned at 7:00 p.m., she learned that seniors had been among
those who had been invited at 4:00 p.m.,
an occurrence that Ms.
Riggo felt was a ploy to keep her from speaking.
She stated that
she was the first called after the break at 9:15 p.m.
(Tr. at
186—190.)
Ms. Riggo also testified that the court reporter was
directed not to record the Village Clerk’s report, and that when
he started a second report on health and
dioxin, the audience
started shouting at its length.
She stated that at about ten
minutes after the Village Clerk started his second report the
crowd started “erupting”.
(Pr. 186-189,
191.)
Ms. Dilys Jones proffered a written statement from her
sister with a copy of the questions that her sister said she had
submitted during the hearing on the proper form and that they
were not answered.
The hearing officer allowed only one page of
the questions, ruling that the rest were answered.
(Tr.
208-216;
PX 2.)
Ms. Jones herself stated that she stayed from the
beginning to the end of the hearing, and testified near the end
of the testimony portion of the hearing.
(See C 003368-003386.)
During the question and answer period that followed, it was
arranged that Ms. Jones’ 228 questions to ABB would be responded
to by them in writing.
Ms. Jones testified that she did not
receive the answers until September 12,
1992, two days after the
close of the public comment period, and also that not all were
answered.
(Tr. 196—198. See C 03432.)
Rev. David J. Bauer testified that he was denied use of an
overhead projector that had earlier been used by the applicant
for its presentation.
Rev. Bauer wished to put up some overhead
transparencies.
He was told that he could submit hard copies for
the record and was allowed to read the headlines of the newspaper
articles that he wished to submit.
He was disappointed about the
fairness of the hearing and was aggravated about his experience.
(Pr. at 216—222. See C 03316—03324).
0139-0570
13
JanuarY
8.
1993 hearing day.
Ms. Anita Cummings testified that she felt that the hearing
procedures were unfair in a number
of
respects,
and that she had
never seen hearing conducted in such a manner.
She asserted that
people were not called in the order in which they signed in as
they should,
that the hearing officer shuffled through the names
of those persons signed up to testify, and that it appeared that
those who were strongest in opposition were left to testify until
very late, when the crowd had thinned.
She Stated that those in
support were scheduled to testify in the early part of the day;
yet,
in the middle of the scheduled time for the opponents’
testimony a member of the village staff was allowed to give an
hour and one—half of testimony in support o~the incinerator.
Those people who could not wait any longer had to leave.
She
stated also that people should be given equal time to present
their views.
She also felt that the number of police officers
along the walls and back were a very intimidating factor.
(Pr.
at 229—237.)
Ms. Hazel Noise (phonetic)
testified at 4:00 p.m. but
attended the evening hearing and felt intimidated by those
managing the audience at the Summit hearing, although she
acknowledged that those testifying were never interrupted.
(Pr.
at 238, 239.)
Ms. Michelle Schmidtz stated that she arrived at the hearing
at 9:00 a.m. and she, and her husband who actually testified,
were heard at 11:00 p.m., over 16
(sic) hours spent waiting to be
heard.
She stated that she did not hear the hearing officer’s
offer of a chance to speak in the afternoon.
She was under the
impression that the reconvened hearing at 7:00 p.m. was for the
public, but instead there was a presentation by ABB, and then the
Village Clerk read each member’s report by Summit’s twelve member
fact-finding committee, which took until 9:00 p.m., or two-and-
one—quarter hours.
She did not feel her time frames were
inconsistent, and acknowledged that there may have been
intervening testimony.
She stated that she had not anticipated
having to recreate the events at a hearing before the Board.
She
felt that the hearing was manipulated by the proponents,
and that
she was aware of several people who were not able to speak, in
that they had to return home to sleep and get up for work the
next day.
She also stated that her questions she submitted were
never answered, and that the proceess for getting them answered
was never made clear.
She testified that the hearing was very
intimidating, giving an example of a policeman armed with a gun
leaning towards a woman who got in the view of the ABB
presentation while putting her form requesting to speak in the
box, then retreating when he knew what she was doing.
(Pr. at
239—253.)
0139-0571
14
Ms. Nancy Katz testified that the entire police force of
Summit appeared to be at the hearing, about four in the back of
the
auditorium,
four
along
the
left
wall,
and
about
five
or
six
outside the auditorium.
She stated that it was very
intimidating, including a comment by the police chief that he
thought
people
involved
in
environmental issues just thought
other people were stupid.
When persistently challenged by the
counsel for Summit14 to identify the police officers by gender,
or whether they were black or white, or Hispanic or Asian,
Mrs.
Katz essentially responded that that she wasn’t paying attention
to that, but saw that they wore police uniforms, had on badges,
and carried guns.
(Pr. at 262-266.)
Ms. Karz stated that before they got into the auditorium,
before 10:00 a.m. the day of hearing, the Mayor came out and told
the police chief to throw in jail anyone who started anything.
She testified that she was aware that some people were allowed to
give ,testimony shortly before the 5:00 p.m.
dinner
break,
but
thought that, when convening at 7:00 p.m., the opponents would be
allowed to continue.
She believed that the Village Clerk took
more than an hour and a quarter to read his testimony, and that
the opponents did not get to speak until around 9:00 or 9:30
p.m..
She stated that if any spoke in opposition before that
time the ‘testimony must have been very briefi
Ms. Katz stated
that she had submitted her questions on the forms but they were
never answered.
(Pr. at 254-262, 266-279.)
Ms. Marie Kucera, who attended the morning portion of the
hearing and all of the evening portion, testified
that she was
“totally
disgusted”
(Pr.
at
280)
by
the
Village
Clerk’s
monopolizing the meeting with his presentation
-
the reading of
twelve documents prepared by persons who had gone to view (ABB’s)
Detroit incinerator. She stated that, after he had read five or
six of the reports in a “very, low monotone voice”
(Pr. at 281),
the audience started to become upset.
She stated that the
hearing officer tried to calm everyone down and instructed the
Village Clerk to continue reading (until almost 11:20 a.m. by her
estimate).
Ms. Kucera stated that some were shouting
“filibuster” repeatedly
(Pr. at 281) and the police did approach
them.
Things
then
quited
down,
the Village Clerk finished, and
the meeting was then opened up.
She testified that she saw no
motion of the court reporter at all during the entire episode.
(Pr.
at
279—286.)
Board hearing officer Allen E. Shoenberger made the
following statement regarding the credibility of the witnesses
14
The Board notes that Mr. Vincent Cainkar, who
represented Summit on appeal, was also the hearing officer at the
Summit
hearing.
0139-0572
15
(See 35 Ill. Adm. Code 103.203(d)) testifying at the Board
hearings
of
January
7
and
8,
1993:
I find that there are no issues of credibility that are not
apparent on the record.
In a number of instances minor
discrepencies appeared to exist between testimony of
particular witnesses and affidavits executed by those same
witnesses with respect to what they received in the mail
from the Village of Summit.
On these matters I am persuaded
that the trial testimony should be given credit and
convinced that the siting application was not received from
the Village Clerk by these witnesses.
(H.
0. report,
Jan.
12,
1993)
February 5. 1993. hearing day.
As the petitioners and respondents had rested their cases,
this hearing was devoted to members of the public generally.
We note that the hearing officer sustained objections over
further testimony by Ms. Dilys Jones, who had testified at the
January 7, 1993 Board hearing, about her sister’s experiences.
(Feb.
Pr. at 6-23.)
Mr. Zilka, who had earlier testified at the January
7,
1993
Board hearing, stated that he and Ms. Dilys Jones’ sister were
among those yelling during the Village Clerk’s testimony to get
the hearing officer’s attention, and that the police threatened
to throw them out but did not threaten to arrest them.
(Feb.
Tr.
at 23—28.)’~
The following persons had not testified at the Summit
hearing.
Ms. Moreno testified that the notices should have been
written in Spanish as well as English, so the minotity community
could understand them better.
She testified that she felt that
she would be harrassed if she requested guidance from Summit.
(Feb.
Pr. at 28—30.)
We note that Mr. James Sylvester made a sweeping statement
concerning the incinerator’s emissions which he stated were legal
arguments that the hearing officer suggested were more properly
directed to the Illinois Environmental Protection Agency.
(Feb.
Tr.
at
31—53.)
15
In
that
the
numbering
was
started
anew
in
the
transcript
for
the
February
hearing,
it
will
be
designated
as
Feb.
Pr.
at
0139-0573
16
We
note
that
Mr.
Edward
Novak’s
statement
in
opposition
to
the
incinerator
was
couched
as
a legal argument.
(Feb.
Pr. at
53—56.)
Mr. Lawrence Joseph argued against the rise of technology
from a religious perspective, citing the need for recycling but
not
for
incineration.
(Feb.
Pr.
at
58-74.)
We note that Ms. Evelyn Coleman’s statement against the
incinerator was couched as a legal argument.
(Feb. Tr. at 75—
77.)
Board hearing officer Allen E.
Shoenberger, pursuant to 35
Ill.
Adm Code
103.203(d),
found
no
issues
of
credibility
regarding the February 5,
1993 hearing.
(H.
0. report, February
9,
1993.)
BOARD
DISCUSSION
The respondents did not present any witnesses or exhibits at
the
Board
hearing
(except
for
the
Clerk’s
motion
and
certification of the record as ordered by the Board)
at the Board
Hearing.
As earlier noted, respondent Summit did not file a
brief.
Respondent WSREC did file two briefs, one for Zeman and
one for Quilty., so it is those briefs that are being referenced
below for respondent’s arguments.’6
The
ApDlication
and
amended apDlication.
The respondent notes
that the Village Clerk filed an affidavit onSeptember
8,
1992
(See C 04060-04061) that, we note, directly contradicts the
testimony of the petitioners before the Board regarding the
availability of the application, and in part the testimony
regarding the amended application.
Respondent then quotes from
Summit’s siting ordinance regarding the application, that also
directly contradicts the testimony before the Board in that same
regard
(See Summit Ordinance
at
C 05003, para.
8).
(Resp. Zeman
Br.
at
2,
3,
8.)
Respondent then argues its case from a number
of perspectives:
Respondent asserts that either petitioner(s) .received a copy
of
the
application
from
someone
else
and then failed to share it
with others; or petitioners received a copy of the amended
16
We will refer to the respondent’s brief addressing the
Zeman and Quilty petitions as Resp.
Zeman Br. and Resp. Quilty
Br. respectively.
We note that the more detailed references are
made to respondent’s Zeman Brief, which advances a number of
legal
arguments.
We
also
note
that
this
opinion’s
lack
of
detailed
reference
to
the
petitioners’
briefs
is
not
meant
to
imply
in
any
respect
that
the
Board
did
not
read
them
carefully.
17
application
after
the
hearing
but
that
it
didn’t
differ
in
any
material respect from the original regarding items a petitioner
testified to or commented on; or petitioner got a copy of the
amended application after the hearing and advised other
petitioners,
who
in
turn
made
no
attempt
to
obtain
either
the
application or amended application beyond their initial efforts.
Finally, the respondent asserts that none of the petitioners
submitted written comments on the substance of either
application.
(Resp. Zeman Br.
at 2,3.)
Respondent then argues that the manifest weight of the
evidence standard of review applies to the Board regarding
decisions of Summit (quoting from Christian County Landfill. Inc.
v. Christian County Board, PCB 89-92
(October 18,
1989.
(Resp.
Zeman Br. at 8,9.)
Respondent then asserts that the evidence before the Summit
Village Board, in addition to the Village Clerk’s affidavit,
included: the petitioners’ affidavits and their Summit hearing
testimony;
a letter from the Summit hearing officer to counsel
for the petitioners that he was extending the Summit post-hearing
comment period for 14 more days
(See C 01872); and evidence that
none of the petitioners submitted substantive comments.
(Resp.
Zeman Br. at 9.)
Respondent then argues that the testimony of the petitioners
at the Board’s hearing cannot be considered by the Board,
citing
Section
40.1
of
the
Act;
No new or additional evidence in support of
or
in
opposition
to any finding,
order, determination, or decision of the
appropriate county board or governing body of the
minicipality shall be heard by the Board.
(Resp. Zeman Br.
at 10.)
Respondent then argues that the Board’s hearing officer
erred in overruling respondent’s objection to petitioner’s
testimony when such testimony could have been presented to
Summit.’7
(See Pr.
24—26, 28; Resp.
Zeman Br. at 10.)
The respondent then argues that the evidence before Summit
lent itself to a number of conclusions, e.g.; the petitioners
were lying; the events occurred with the petitioners through
inadvertence but was cured by extending the comment period; the
“inadvertance” problem could not be cured by the extension of the
comment period; the applications were intentionally not provided
to the petitioners; the Village Clerk was lying under oath and
17
The Board affirms the hearing officer, for the reasons
explained in the Board Discussion segment of this opinion, in
admitting all testimony. objected to.
0139-0575
18
the
applications
were
not
generally
available.
Respondent
argues
that, under a manifest weight standard, Summit’s determination
that “the statute was complied with” cannot be overturned.
Respondent argues that the evidence of the Village Clerk’s sworn
affidavit is enough to support Summit’s decision, and that it is
not the function of the Board to “reweigh the evidence or assess
credibility”.
(Resp.
Zeman Br. at 10,
11.)
Respondent further argues that, even if one attempts to
reconcile the “conflicting testimony” before the Summit Board by
finding “inadvertance”, fundamental fairness was served.
At
least three petitioners had the amended application before the
affidavits were submitted during the comment period, and the
existence of the amended application was known to counsel for all
the petitioners at least by September 1, 1992.
None of the
petitioners before the close of the comment period submitted
either “written testimony on the amended application or submitted
óross—questions to the applicant or any of its witnesses on
matters raised therein”.
(Resp.
Zeman Br. at 12.)
The Board rejects the Respondent’s arguments.
Regarding the “manifest weight” issue, there is nothing in
any holding by this Board or by an appellate court that even
remotely suggests that the Board is to review the issue of
fundamental fairness using a manifest weight of the evidence
review standard.
We remind the respondents that the decisions that are to be
made by Summit are contained in Section 39.2. of the Act involving
the nine criteria listed therein, and thus it is in the review of
these decisions where the manifest weight of review standard
applies.
Summit itself showed that it understood that the
purpose of the hearing was to determine whether the nine criteria
had been met in its document that it distributed concerning the
public hearing process.
(H.O. Exh.
5, C 00066.) We also note that
the respondent failed to include in its above quote of Section
40..
some key language that followed:
In making its orders and determinations under this Section,
the Board shall include in its consideration the written
decision and reasons for the decision of (Summit), the
transcribed record of the hearing held pursuant to
Subsection
(d) of Section 39.2 and the fundamental fairness
of the procedures used by ISummiti in reaching its decision.
(Emphasis added.)
It
is
not for Summit to decide fundamental fairness,
it is
for
Summit
to
abide
by
it.
Regarding the language concerning evidence in Section 40.1
that respondent quoted above,
‘in that fundamental fairness is not
0139-0576
19
a determination made by Summit, that language is not applicable
to the scope of the Board’s hearing regarding evidence of
fundamental fairness.
Indeed, as the petitioner Zeman brief
notes, the Board not only is
~
constrained by Summit’s record,
the Board may review off—record matters as the particular
situation requires.
E & E Hauling v. Illinois pollution control
Board.
45.
N.
E.
2d 556. 562
(Ill.ADp.2d Dist.
1983).
(Zeman Br.
at 20.)
In other words, the Board reviews SB 172 fundamental
fairness from the perspective of the general principles of
longstanding which have been articulated by the courts and by
this Board.
We will now address the issue of credibility of those
testifying at the Board hearing about the availability of the
application.
That testimony persuades the Board that Summit did
not make copies of the application available upon request for
either inspection or copying for a fee.
The Village Clerk’s
sworn affidavit does not rise to the level of credibility of that
of the petitioners, whose testimony was fully aired at hearing
and whose credibility was not successfully challenged, either at
hearing or in the theoretical hypotheses in the respondent’s
brief. The Board does not disagree with the finding of its
hearing officer that the testimony
of. the witnesses is convincing
in that the applications were not received.
Regarding whether the petitioners timely raised the issue of
their failure to get the application, we note that this record
clearly indicates that the issue was indeed raised in testimony
at the hearing.
Regarding the timeliness of raising the issue concerning the
amended application,
a number of those had not heard about its
existence, certainly not before the hearing.
Regarding those who
heard about the amended petition during the hearing, we note that
during the late evening of the Summit hearing, when a Ms. Marcia
Powers asked for a copy of an amended application, stating that
she preferred to submit written comments on it rather than the
application, the hearing officer told her to submit a freedom of
information request with the Village Clerk and she would get one.
He then stated that then she could comment on it during the post-
hearing comment period.
Then a member of the audience asked:
Wouldn’t it have been pertinent to have it available for our
review?
Most of these comments will go nowhere and you know
that because we have nothing to base these comments upon.
(C 03315,
003316.)
The hearing officer responded:
The hearing’s been going since 10:00 this morning.
There’s
been more than adequate material to make comments on.
(C
03316.)
0 139-0577
20
The Board concludes that those with problems concerning the
availability
of
the
application
and
the
amended
application
timely raised the issue.
We point out that it is Summit’s duty under the Act, in
Section 39.2(c), to make copies of the filed application
available for public inspection or copying.
It is not the burden
of the citizens to seek copies elsewhere or to provide them to
others.
The Board and the courts have been unambiguous about
this
issue, and Summit was aware of this requirement,
as shown by
their legal notices.
The local decisionmaker must utilize
procedures or practices that are not inconsistent with the Act or
the standards of fundamental fairness.
Waste Manaaement v.
Illinois Pollution Control Board.
530 N.E.2d 682
(Ill.ADD.2d
Dist. 1988).
The Board has stated:
The function of notice and the required time period between
notice and hearing is first to inform the affected public
that a landfill suitability process has been initiated and,
second, to allow time for the public to review the
application to determine whether or in what manner further
participation is warranted.
McHenrv County Landfill. Inc.
v. County Board of McHenrv County, Nos. PCB 85-56, 85—61—66
(consolidated),
September 20,
1985, at 4.
We point out that it is a right of citiZens to participate
at hearing, to have their views aired in sworn testimony at
hearing and to question the applicant at hearing cannot be
abridged by shifting their participation over to the post-hearing
comment period.
(See the Act, Section 39.2(d) (hearing shall
develop record sufficient to form the basis of appeal); Section
40.1 (transcribed record of hearing); Kane County Defenders v
Illinois Pollution Control Board, 487 N.E.2d 743
(Ill.App.2 Dist.
1985)
(importance of local hearing).
We are particularly concerned that this record contains no
indication that Summit formally or even informally made it known
that an amended application had been filed five days before the
hearing, and thus that it was the amended application that was to
be presented at the hearing.
In
1988,
a paragraph was added to Section 39.2(e) of the
Act by P. A.
85-945, which provides:
At any time prior to completion by the applicant of the
presentation of the applicant’s factual evidence and an
opportunity for cross-questioning by the county board or
governing body of the municipality and any participants, the
applicant may file not more than one amended application
upon payment of additional fees pursuant to subsection
(k);
in which case the time limitation for final action set forth
0’~39 0578
21
in this subsection
(e)
shall be extended for an additional
period of 90 days.
On the morning of the hearing, when the hearing officer
placed the amended petition into the record, the applicant made a
brief, non—specific statement that the amendment was in regard to
the legal description and Criterion #4, the flood plain
criterion.
Then later, during the applicant’s presentation, we
agree with the Zeman brief that the testimony gave an imprecise
picture of the nature and extent of the changes contained in the
amended petition regarding Criterion #4.
The applicant’s lack of
explanation as to what the use of the non—statutory term “flood
fringe” meant in relation to the term “flood plain”, and to what
was the impact on the twenty—four acres being discussed,
contributed to the lack of clarity.
(C 03005, 03~33-03139;Zeman
Br.
35—40.)
It is true that the Section 39.2(e) does not directly
address how the public is to be made aware of the filing of an
amended application; however, the statute clearly assumes that
reasonable efforts have been made to make the public aware of its
existence so that the hearing participants, as well as the
decisionmakers, can address the amended application.
It assumes
that this will take time,
in that the decision deadline is
extended for 90 days.
The combination of events that occurred in
this proceeding revolving around Summit’s handling of the
application and the amended application served to frustrate the
public’s participation to an extent that clearly was contrary to
the intent of the statute.
Summit’s procedural failure to provide proper access to the
application is a fatal flaw from a statutory perspective, and the
Board ‘finds that such failure constitutes fundamental unfairness.
For
this
reason
alone
the
Board
will
remand
this matter to Summit
for a new hearing.
The Board also finds that the procedural
manner in which Summit handled the amended application was
fundamentally unfair.
The hearing.
Before addressing the testimony of what occurred at hearing,
we will first address one aspect of Summit’s “Rules and
Procedures”.
(C 00068.)
The testimony shows that this document,
a double-sided single sheet containing 13 rules for the hearing
and post-hearing comments, was widely distributed prior to, and
at, the hearing, and played a significant role in the events that
later occurred.
Of particular note is Rule 5, which states:
The schedule of presentations shall be as follows:
0139-0579
22
First:
Presentation
by
the
applicant.
Second:
Presentation
by
all
other
participants
in
support
of the application.
Third:
Presentation by participants in opposition to the
subject application.
Fourth:
Inclusion in the record of written comments
received prior to or at the time of the public
hearing.
Fifth:
Rebuttal by the Applicant to any presentations,
comments, or statementts in opposition to the
subject application.
Sixth:
Inquiry by the Hearing Officer on behalf of the
Mayor and Board of Trustees or on behalf of any
participant submitting relevant cross—questions to
be answered by the Applicant or any witness at the
public hearing.
Seventh:
Adjournment, recess or continuance of the public
hearing.
What was actually allowed to occur at hearing clearly veered
from the above rules and in other respects was clearly not what
people were given to expect.
After the applicant finished its five-hour presentation
during the day (See C 03197), the hearing officer announced that,
“under Rule 5” the second portion of the hearing
—
a presentation
of those in support of the application
-
would commence.
(C
03163.)
After three persons testified in favor
(C 03163—03173),
the hearing officer read off the names of about 60 persons and
their municipalities in support, noting that their comments would
be included in the record and “some will be read later”.
(C
03173.)
We note that we find no indication that any person on
that list later testified.
Following that,
the hearing officer announced that those in
opposition could commence testifying.
Four people testified,
after which the hearing officer noted that the hearing would
resume at 7:00 p.m., and that there would be a short presentation
by the applicant,
followed by the presentations in opposition to
the application.
The hearing then was recessed at 5:00 p.m.
(C
03191,
03192.)
The hearing resumed at 7:00 p.m.
(C 03192.) The hearing
officer explained that the hearing would be conducted in
accordance with the “Rules and Procedures”
—
which as noted
included the aforementioned “Rule 5”.
Included in the hearing
officer’s remarks was a statement concerning procedures for
0139Q580
23
testimony
~
or
in
opposition
to
the
application”.
(EmDhasis
added)
(C
03193.)
All persons were cautioned against
disruption, or be subject to ejection or arrest.
He also stated
that the speakers had no time limit, but asked that they be
considerate,
in that “we)
have all night and so we’ll finish the
hearing tonight,
it doesn’t matter what time...”.
(C 03194.) He
then read the six criteria from a sheet titled “The Public
Hearing Process”, which had also earlier been distributed to the
audience.
(C 03194.)
ABB then made a presentation, including a videotape.
(C
.03197-03210.)
Officials of two nearby villages, and a candidate
for State Representative, spoke in opposition.
(03210—03224.)
Then,
for the first time, the hearing officer clearly announced
that he was going to diverge from the scheduled agenda.
After
four residents of Summit spoke in opposition, the Village Clerk
would then speak.
(C 03224.)
After the four rather short
presentations in opposition
(C 03225-03235), the hearing officer
called on the Village Clerk, who announced that he was “chairman
of a citizens’ fact-finding committee and this is the report of
that committee”.
(C 03236.)
The next sentence in the record is that of the court
reporter, who
stated:
“Whereupon, the report of the Citizen’s
Fact-Finding Committee was read into the record and is attached
hereto”.
The hearing officer then noted that a copy of the
report would be submitted into the record.
(C 03236.)
The
transcribed record contains nothing about what transpired during
the village Clerk’s presentation.
The respondent argued that there was “nothing sinister”
about all this.
The respondent argues that it is common
practice,
it keeps the court reporter “‘fresh’ for the duration
of the evening”, that the issue is a “red herring” in that “if
the Clerk made statements that were not contained in the Report,
those statements were not considered by the Village Board in
arriving at its decision.”
The brief then asserts that the issue
before the Board is whether Summit’s decision was correct “in
light of the evidence before it”.
(Reap. Quilty Br. at 9.).
The respondent further argues:
The Clerk’s desire to read the Report, rather than simply
submit it for inclusion in the record of the hearing, is
likely a recognition of the reality that local siting
approval hearings are typically not the antiseptic “make the
record” proceedings that the statute mandates, but rather an
agglomeration
of
town
meeting,
evidentiary
hearing,
legislative hearing, and information dispensing all rolled
into one.
(Reap. Quilty Br. at 9.)
0139-0581
24
The
respondent
then
argues
that
it would have been worse if
the dozen members of the citizens’ committee had each elected to
take four minutes to testify instead, and then suggests that it
is not clear if the hearing officer could have forbade it.
(Reap. Quilty Br.
at
10.),
The respondent argues that many hearings do not start until
8:00 p.m. with presentation of the applicant’s case, and “it is
difficult to see how allowing opposition testimony to begin at
9:15 violates either the Rules adopted by the Village or notions
of fundamental fairness”.
(Resp. Quilty Br. at 10.)
We first remind the respondent that in an SB 172 proceeding
Summit is assuming an adjudicatory role,
and that includes the
conduct of its hearing.
It is not a town meeting or a
legislative hearing, and the respondent itself admits that the
hearing was not what the statute mandates.
Waste Mana~ementv.
Illinois Pollution Control Board, 463 N.E.2d 969, 973
(Ill. App.2
Dist.
1984) ; E
& E Hauling.
Inc.
V.
Illinois Pollution Control
Board, 451 N.E.2d 556, 564 (Ill.App.2 Dist.
1983); Kane County
Defenders
V.
Illinois Pollution Control Board, 487 N.E.2d 743
Ill.App.2 Dist.
1985).
That the testimony of the Village Clerk was not transcribed
,is totally unacceptable.
It is part of the record of testimony
at the hearing and was to be transcribed, as the earlier quote of
Section 40.1(a) of the Act makes clear.
It is one thing to place
directly in the record a written copy of the report as if read;
however, it is another thing for a person to testify and Summit
fail to transcribe it.
Summit cannot determine what testimony is
transcribed, no matter who has presented it.
The Board has
difficulty accepting this turn of events as happenstance,
particularly since every other instance where a person testified
and a copy was then put into the record, the testimony was also
transcribed.
The Board has viewed the document placed in the record,
which we note is unidentified except for a notation in the
Village Clerk’s index of the record (See C 0673-0708).
Based on
its own hearing experience, the Board can easily believe that it
would have taken well over an hour to read, even without
interruptions.
In essence, the hearing officer at the evening hearing acted
contrary to Summit’s own widely distributed Rule 5 as well as his
own statement made at the end of the afternoon hearing, and in
the process created a hole in the record of testimony, all
causing a significant postponement in the ability of almost all
persons who signed up to testify.
We also note that the delay in
the citizens’ testimony also caused a delay in their hearing the
answers to their written questions,
in that this portion took
0139-0582
25
place
at
the end of the Summit hearing, a hearing that did not
adjourn
until
2:30 a.m.
(See C 03407—03447.)
We also note that not all the questions asked were responded
to, nor did all those wishing to testify do so.
(See C 03326,
03331,
03358,
03386.)
While a late—adjourned hearing alone may be unavoidable, the
lateness of this hearing was avoidable.
Those in attendance had
no reason to expect the surprises that occurred, and were
understandably discouraged and upset.
Without condoning the
outbursts,
we
suggest
that
the
conduct
of
the hearing aggravated
the security situation that Summit was so concerned about.
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 constitt~tefundamental unfairness.
That issue is not
presently before us.
We conclude, and so find, that the opponents were not .given
a fair chance to present evidence against the siting at hearing
and that it constituted fundamental unfairness.
This is
certainly true when one considers the problems with the lack of
availability of the applications when presenting opposing
evidence in response to unseen documents.
We also point out that
post—hearing comments are obviously no substitute for
participation at hearing.
The Board has concluded that the only way to have a full
record on appeal is to remand this matter to Summit for a new
hearing process,
a new post comment period, and new decision by
Summit.
We are thus not making any findings regarding the
appealed criteria based on this record.
Since the unavailability of the application was
fundamentally unfair, the process became ‘void or “terminated” at
that point.
The Board has reviewed the conduct of the hearing so
that its unacceptable aspects will not be repeated.
The Board
vacates the decision by Summit and closes this docket, having
concluded our review of this decision by Summit.
We note that if
any person wants to appeal a decision made by Summit after
remand, they must initiate a new appeal.
On remand, in lieu of a refiling by the applicant, the new
proceedings will recommence with the already amended application.
Since the application has already been amended, it may not be
further amended; if the applicant desires to further “amend” the
application, it must file that application as a new application
in accordance with the statute.
The statutory 180-day timetable
will begin 35 days after the date of this Board order, unless
stayed by the filing of a motion for reconsideration.
Summit
will follow that timetable, including the provisions for noticing
and holding the hearing, as well as the comment period.
Summit
0139-0583
26
must make the amended application available as required by
statute.
Any person who wishes to testify, pro or con, may do
so, as well as ask questions.
While Summit is free to have rules
of procedure for the conduct the proceedings, they and the
proceeding must be consistent with this opinion, the statute and
the standards of fundamental fairness.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
For the reasons expressed in the above, opinion, the Village
of Summit’s October 19, 1992 decision on the application of West
Suburban Recycling and Energy Center is hereby vacated as being
fundamentally unfair.
This matter is remanded to the Village of
Summit for a new hearing process, including a post-hearing
comment period,
in accordance with the following:
1.
The statutory 180 day timetable as provided in Section 39.2
of the Environmental Protection Act
(Act)
(Ill.Rev.Stat.1991,ch.
111 1/2, par. 1039.2) will begin 35 days after the date of this
order unless stayed by the filing of a motion for
reconsideration.
2.
Summit shall timely make available the amended application
for inspection and copying in accordance with Section 392 of the
Act, ‘and may not accept an amended application.
3.
Summit shall provide notice of the hearing, and hold it in
accordance with the provisions of Section 39.2 of the Act,
without limitation,
including allowing any person who wishes to
participate by presenting testimony or asking questions to do so.
4.
summit shall provide for a post-hearing comment period as
provided in Section 39.2 of the Act.
6.
Summit’s decision must be based on the new record before it
in accordance with Section 39.2 of the Act.
IT
IS
SO
ORDERED.
3. Theodore Meyer and G. Tanner Girard concurred.
01 39-058k
27
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution control
Board, hereby certjfy that the above ~pinion and order was
adopted on the
‘~L3~ day of
________________,
1993, by a
vote of
____________
~,
Dorothy M,7~unn,Clerk
Illinois ~óllution Control Board
0139-0585
