ILLINOIS POLLUTION CONTROL BOARD

October

27,

1989

SAM

DIMAGGIO,

 CARL PIACENZA,

)

DANA PIACENZA, ROBERT NIKOLICH

)

HOUSTOUN N.

 SADLER,

 LINDA \TUKOVICH

and WILLIAM A. WEGNER

Petitioners,

v.

)

 PCB 89—138

SOLID WASTE AGENCY OF NORTHERN

COOK COUNTY;

 CITY OF ROLLING

MEADOWS, A MUNICIPAL CORPORATION,

AND

CITY OF ROLLING MEADOWS CITY

COUNCIL,

 A BODY POLITIC AND

CORPORATE,

Co—Respondents.

DISSENTING OPINION

 (by J.D.

 Duinelle):

I dissent from the majority Order adopted October

27,

 1989,

affirming the decision of the Hearing Officer

 in which subpoenas

for the deposition of the Mayor and Aldermen of the City of Rolling

Meadows were quashed.

 I believe that the Environmental Protection

Act

 (Act)

 and the record of

 this proceeding support Petitioners’

request to take the depositions of the Mayor and Aldermen on the

limited

 issue

of

ex

 parte

 contacts

and

 Open

 Meetings

Act

violations.

As the majority Order sets out a thorough description of the

procedural history,

 I will not repeat the facts here.

 I would note

that Section

5(e)

 of the Act states as follows:

In

 connection

 with

any

 hearing

 pursuant

to

subsection

(b)

or

(d)

of

 this

 section

the

Board may subpoena

 and compel

 the atter~ance

of

 witnesses

 and the production

of

 evidence

reasonably

 necessary

to

 resolution

of

the

matter under consideration.

 The Board

 shall

issue such

 subpoenas upon the request of any

party to

 a proceeding under subsection

(d)

of

this

 section

or

 upon

its

own

 motion.

(Emphasis added.)

Subsection

(d)

 of Section

 5 states in relevant part:

The Board shall have the authority to conduct

hearings

***

 upon other petitions for review

~(~45q7

of

 final

 determinations

 which

are

 made

pursuant to the Act

 or Board

 rule and which

involve

a

 subject

 which

the

 Board

is

authorized

to

 regulate;

and

 such

 other

 hearings as may be provided by rule.

I believe that there is no question but that the testimony of

the individuals sought to be deposed

 is “reasonably necessary to

resolution

 of the matter under consideration;”

 these

 individuals

played an active role in the proceedings below and suggested on the

record that there were some kind of communications that occurred

off the record.1

 Because Section 5(e) uses the word “shall” in the

context of issuing a subpoena for such an individual

 in these and

other specified types of proceedings,

 I believe that the Board

is

mandated to

 issue the subpoenas

 in this proceeding.

 I therefore

believe that

 the Hearing Officer’s Order

 should be reversed

and

that

the

 subpoenas

 should

be

 issued

 consistent

 with

the

 clear

legislative

 directive

of

 Section

 5(e)

 Consistent

 with

 this

belief,

 I do not agree with the majority that there

is

 a minimum

amount of

 information which must be

 alleged

 before the subpoena

will issue.

While

I

 generally

 agree with the majority and

Mr.

 Justice

Frankfurter

 that

 “the

 mind

of

 the decisionmaker

 should

not

be

invaded,”

 I do not believe that the majority’s reliance on U.S.

Morgan,

 313 U.S.

409

 (1941),

 is appropriate in this context.

The

inquiry here

 is not why did you vote a certain way.

 Rather, the

inquiry is upon what did you rely in making your decision?

 Section

39.2 of the Act makes

 it quite clear that the decisionmakers are

to base their decisions solely on the record that is created with

respect

 to the

 criteria

set

 forth

in

 subsection

(a)

 Because

See,

 e.g.

t~ic testimony

Alderman

Ball

0—1387,

WiieiCull

he states:

So I was stuck in

 a situation where we have to

find

a

 solution,

but

I

 don’t

 want

 this

to

stick

the

 community

and

we

 came

up

 with

a

proposal

of

——

a

 proposal was made

for

six

communities

and

I

 sat and

 I talked

 with

the

business

 community,

I

 talked

 with

Mr.

 Baigh

and

 talked with

Mr.

 Katlin,

 and we all went

through everything that has gone

on.

 And you

know each one

 of those two gentlemen had the

courage to listen to the arguments being made,

each

of

 them

 uses

 common

 sense,

 definitely

they

both

 used

a

lot

of

 critical

 thinking,

there are probably

a

 lot of nights that

 they

~idn’t

 sleep

 thinking through

 this

 proposal

End

 sure along with several other members

 the city council.

~d

 both of them ca~pjp

the

 direction

of

 compromise.

 (Emphasis

added.)

104

 5°0

Section 39.2 specifically limits the area of inquiry,

 I believe it

is

 appropriate

for

a

 third

 party

 petitioner

to

ask

 limited

questions

of

the

 decisionmaker

 regarding

 what

 sources

of

information he relied upon

 in making his decision so as to ensure

 that the decision was properly based upon the record,

 i.e.,

 public

information

 subject

to

 cross—examination.

 This

is

a

 simple

question of fact;

 in this limited respect, the question is not an

invasion of the thought processes of the decisionmaker.

Finally, I would note that Section 40.1(a) requires the Board

to include in its review the fundamental fairness of the procedures

used by the county board or governing body of

 a municipality.

~

parte

 contacts

 certainly

 fall within

the

 domain

of

 fundamental

fairness of the procedures used by the decisionmaker and, as such,

constitute

a

 required

 inquiry

by

the

 Board

as

it

 reviews

the

proceeding.

 As a policy matter,

 the majority’s decision here to

deny depositions on the nature and the extent of ~

 parte contacts

may well delay the ultimate resolution of this proceeding.

 The ~

parte contacts, those that were alleged in Petitioner’s motion and

those that appear in other parts

 of the record, must be explored

for a proper examination of their effect upon the outcome.

 Because

the majority did not allow such

 an examination at this time,

the

Board

 will

be

 required

to

 revisit

 the issue when

it

 adopts

its

final decision.

And

if,

 based

 on the information that currently

exists,

 the Board believes that there may have been inappropriate

ex parte contacts,

 the Board may well remand the proceeding with

instructions to review only the existing record and make a decision

thereon.

 However, were the majority to permit the depositions now,

the testimony might clarify that the ex parte contacts were not

related

 to the

 decision,

and

the

 matter

 might

not

 need

to

be

remanded.

 In this event,

 the additional expenditure of time and

money

 in the remand proceedings could be avoided.

For these reasons,

 I dissent.

,~—.

/fl/fl

~i~•-

~‘

 Jacob D.

 Dumelle

 Board Member

I,

 Dorothy M.

 Gunn,

 Clerk

 of the Illinois Pollution Control

Board,

 hereby certify that the a~boveDissenting Opinion was filed

on the

 day of

_________________,

 1989.

—

/

~,‘

~borothy M.

~n,

 Clerk,

Illinois Pollution Control Board

1fl4--5~q