ILLINOIS POLLUTION CONTROL BOARD
May 25,
1989
McLEAN COUNTY DISPOSAL
COMPANY,
INC.,
)
Petitioner,
v.
)
PCB 87—133
THE COUNTY OF McLEAN,
Respondent.
THOMAS
J.
IMMEL
(IMMEL, ZELLE, OGREN, McCLAIN, GERMERAAD
&
COSTELLO), APPEARED ON BEHALF OF McLEAN COUNTY DISPOSAL,
INC.;
ERIC
T.
RUtJD, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF OF
McLEAN COUNTY.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter
is before
the Board on remand from the Fourth
District Appellate Court.
The Fourth District
issued
its opinion
in this matter on December
28,
1988.
That opinion affirmed
in
part and reversed
in part the Board’s January 21,
1988 Opinion
and Order
in this proceeding.
The court remanded the case with
instructions.
The Appellate Court issued its mandate
on March
1,
1989.
The Board’s January 21,
1988 Opinion and Order
sets forth
the detailed procedural history of
this matter.
A summary of the
more relevant highlights
is useful here.
The McLean County Board
(rlMcLean County”) denied McLean County Disposal Company’s
(“MCDC”)
Section 39.2 application for landfill
siting approval
on
August
18,
1987.
McLean County found
that MCDC had failed
in its
burden of proof
as
to three of the Section
39.2 statutory siting
criteria contained
in the Environmental Protection Act
(“Act”):
Criterion
No.
2.
The
facility
is
so
designed,
located
and proposed
to
be
operated
that
the
public
health,
safety
and
welfare
will be protected;
Criterion
No.)
3.
The facility
is located
so
as
to minimize incompatibility with
the char-
acter
of
the surrounding
area
and
to minimize
the
effect
on
the
value
of
the
surrounding
property;
and)
99—227
—2—
Criterion
No.
6.
The traffic patterns
to or
from
the
facility
are
so
designed
as
to
minimize the impact on existing traffic flows;
Ill.
Rev.
Stat.
ch.
ill 1/2,
par.
1039.2(a).
MCDC filed
a Section 40.1 petition for
Board review of this
decision on August
31,
1987.
MCDC asserted that the McLean
County determinations on the three statutory criteria were
against
the manifest weight of the evidence;
that McLean County
defaulted by not rendering
its decision within 180 days,
as
prescribed
by Section 39.2; and that the decision was the result
of
a fundamentally unfair procedure.
By its January 21,
1988 Opinion and Order, the Board
determined
that McLean County had defaulted on
the statutory
180—
day deadline
for decision.
The Board
felt that the time
for
decision began
to run from the original date of filing.
McLean
County Disposal Co.
v. County of McLean,
PCB 87—133,
slip op.
at
5
(Jan.
27,
1988).
The Board noted,
but did not decide the
fundamental fairness
issue
involving the lack of
a written
transcript.
Nor did the Board address the merits of the applica-
tion with regard
to the three substantive criteria.
Id.
at.
9~l0.
The Fourth District Appellate Court reversed the Board
on
the 180—day default
issue.
The court held that MCDC had waived
its right to an earlier McLean County decision by participating
in the McLean County proceedings
after
the statutory time
for
public hearings had passed.
Citizens Against the Randolph
Landfill
v. County
of McLean, slip op.
at 17—18
(4th
Dist.
Dec.
28,
1988).
(The court also held
that the 35—day period
for
MCE)O
to appeal the January 21, 1988 Opinion and Order began
to run
from the Board’s March
10,
1988 Order denying reconsideration,
Id.
at
8, and affirmed the Board’s March
10, 1988 denial of the
Citizens Against
the Randolph Landfill’s petition to intervene.
Id.
at
12.)
The court did not expressly address the
fundarnont~i.
fairness issue raised by MCDC before
the Board.
The court
remanded
the proceeding
to the Board with directions.
Id,
at:
~.
Fundamental Fairness
——
The Lack of Transcripts
The Board’s January 21,
1988 Opinion and Order includes
the
vital facts relating
to this
issue.
The Board noted
that McLean
County had a certified shorthand
reporter at all hearings,
and
the reporter did transcribe the proceedings.
But,
the reporter
did not prepare the written transcripts until
after MCDC filed
its appeal with
this ~Board.
Instead, audio tapes of the
proceedings were available
to the County Board members.
~cL~ir
County Disposal
at
9.
The January 21,
1988 Opinion and
O~dcr o
this Board framed the issue
as “whether audio tapes are
equivalent
to written transcripts
for purposes of Ash v.Irojuoft
County Board,
PCB 87—29
(July
16,
1987),” appeal dismissed over
99—228
—3—
objections,
(3d Dist.
Sep.
14, 1987).
McLean County Disposal,
slip op.
at
9
(Jan.
21, 1988).*
In the Ash case,
the written transcripts of the County Board
proceedings were unavailable to the individual County Board
members
until
late on the evening before the morning vote on the
application for siting approval.
The Board found that
“there was
no time or reasonable opportunity for the board members
to
adequately consider the record prior
to decision,”
Ash,
slip op.
at
11,
and held that this decision derived
“in a fundamentally
unfair manner for this reason.”
Id.
at
12.
MCDC would have the Board apply Ash to declare McLean
County’s procedures fundamentally unfair because no written
transcript was available for review prior
to McLean County’s
decision on
its siting application.
MCDC argues that only
a
small minority
of the County Board members were familiar with
the
county record.
MCDC goes on to assert:
The closer question presented
in
this case
is
what happens when
the County Board elects not
to
listen
to
the
tapes or
review the evidence
that
is
available,
but
simply
votes
against
the facility for unspecified
reasons.
Clearly
the question does not go
to an invasion of the
fact
finder’s
thought
processes.
Rather
the
question
is
whether
there
were
any
thought
processes at
all.
In this case,
as the record
seems
to
reflect,
at
least
a majority
of
the
County Board
did not participate
in
a thought
process
which
utilized
the evidence generated
at the public hearings.
MCDC Brief
at
4 (emphasis
in original).
McLean County
interprets Ash
to require
that each County
Board member must have
an opportunity to review the record before
voting.
It asserts
that the availability
of the tape recordings
of
its proceedings satisfies
this
requirement.
McLean County
Response
at 2—3.
As to whether
it
is sufficient
to provide County Board
members an opportunity to review the record before voting,
the
Board agrees with McLean County;
the Board recently stated,
with
regard to the fundamental fairness
issue
and the duty of county
board members
to gain familiarity with the
record,
as follows:
*
On May 23,
1989,
the Board was notified that
its judgment
in
the Ash cases was affirmed by the Third District Appellate Court
(Case No.
3—88—0376,
February
9,
1989).
99—2 29
—4—
The
Board
believes
that
a
fundamentally
fair
process and a decision rendered exclusively on
the county’s
record would
require each voting
county board member
to have gained some degree
of
familiarity with
that record
in some way.
However,
the
petitioner’s
argument
raises
another
important
issue.
This
is
an
issue
with which the United States Supreme Court has
had
difficulty
....
That
issue
defines
the
extent
to
which
this
Board
can
inquire
into
the
county
boardi
members’
decisionmaking
mental
processes
by allowing
their
interroga-
tion
as
to
how
and
the
extent
to
which
each
became
familiar
with
the
record.
The
Board
adopts
the
Supreme
Court’s
position:
each
voting
(county board)
member had an individual
duty to somehow familiarize himself or herself
with
the
county
record
prior
to
rendering
a
vote
on
the
issues
involved;
however,
this
Board cannot
inquire
as
to how and the extent
to which each fulfilled that obligation.
City
of
Rockford
v.
Winnebago
County
Board,
PCB
88—107,
slip
op.
at
4
(Nov.
17,
1988)
(citing United States v.
Morgan,
313 U.S.
409,
422
(1941)).
Therefore,
as
a general
rule,
this Board will not inquire as
to whether board members who have not attended public hearings
conducted under Section 39.2 of
the Act actually listened
to tape
recordings or actually read written
transcripts
of those
hearings.
This
is
an impermissible
inquiry.
See United States
v.
Morgan,
313 U.S.
409
(1941); Morgan
v. United States,
304 U.S.
1
(1938); Morgan
v.
United States,
298 U.S.
468
(1936).
It
is
enough that the record
is available
to the County Board
members.
See Waste Management of
Illinois, Inc.
v.
Pollution
Control Board,
463 N.E.
2d 969, 974,
123
Ill.
App.
3d 1075,
79
Ill. Dec.
415
(1987),
(citing Homefinders,
Inc.
v. City of
Evanston, 357 N.E.
2d 785,
791,
65 Ill.2d 115,
2
Ill.
Dec.
565)
(1976).
The
issue then reduces to whether the County Board
members could have fulfilled their individual obligations
to
review the record
by using such tapes.
That issue,
in
turn, devolves
into two component
issues:
1.
Whether
the audio tapes
in this case were qualitatively
sufficient
to give individual County Board members
familiarity with the record.
2.
Whether
audio tapes can comprise an adequate record
for
purposes
of review by
a unit
of local government
consistent with Sections 39.2 and 40.1 of
the Act.
9 9—230
—5—
With respect to the first component
issue,
the Board finds
that the record does not disclose whether the audio
tapes
employed
in the County Board proceedings are qualitatively
adequate
to give individual County Board members familiarity with
the hearing record.
The Board
notes that the hearing record
before
the County Board
in this proceeding
is not the hearing
record before this Board.
The hearing
record before the County
Board consisted of audio tapes.
The record before this Board
consists of written transcriptions prepared contemporaneously and
certified as true and accurate by certified shorthand
reporters.
We do not know whether
these two versions of
the same
proceeding are essentially identical.
Were the audio tape
recordings of the County proceedings complete?
Were they
audible?
Is
it possible to determine from the audio tapes which
of the participants
is speaking?
Did background noises or
technical problems preclude comprehension?
The County does not
tell us;
the transcribed
record currently before us cannot tell
us.
We cannot overlook the fact that
a majority
of the County
Board did not attend the public hearings.
For these individuals,
the only means of ascertaining
the content of the hearing record
was recourse
to the audio
tapes.
It thus
is critical
to any
determination of fundamental
fairness that the audio tapes
be
sufficient,
in conjunction with other elements
of the record,
to
familiarize County Board members with what transpires at the
hearing.
Nor
can we overlook the fact that,
at hearings before the
County Board, MCDC had no means of knowing that the County
intended
to rely solely upon the audio
tape recordings as the
means
of familiarizing individual County Board members with the
content
of the record.
This being
so,
it cannot be said that
MCDC,
by failing
to object
to such reliance at hearing, has
waived that objection on appeal.
With respect
to the second component
issue,
and although the
Board does not believe that reliance on
a taped record
of any
proceeding
is
a good practice for any tribunal,
it cannot
conclude that
it
is impossible
in all cases
to gain a clear,
complete,
and accurate impression of
a hearing record by their
use.
Although the Board has found no Illinois case directly on
point,
it has found
a New Jersey case which upholds reliance upon
the availability of an audio taped “record”.
See Wildlife
Preserves,
Inc.
v. Borough of Lincoln Park,
377 A.2d 706,
151
N.J.
Super.
533
(1977).
Nevertheless,
taped records provide problems for original
decisionmakers.
The Board’s January 21,
1988 Opinion and Order
and Concurring Opinion both highlight
a number
of these potential
problems.
McLean County Disposal, PCB 87—133,
at
9; Concurring
Opinion at
3.
The Board will not reiterate them here,
but they
99—231
—6—
all
relate to the difficulty of gaining
a complete, audible,
and
accurate account of the hearing by use
of such tapes
for
review.
The Board has also noted that audio tapes may cause
problems
in identifying the speakers and their
respective
positions.
See Moore
v. Wayne County Board, PCB 86—197,
Slip.
Op.
at
5
(June
2,
1988).
It
is apparent that the General Assembly was cognizant
of
these potential problems when
it enacted the so—called “S8l72”
provisions which controls
the
instant siting proceeding.
Those
provisions
include Sections 39.2 and 40.1 of the Act, which
govern the creation of
a record by the affected county or
municipality and mandates the consideration of that record by
this
Board
in the course of making
its orders and determinations
on appeal.
Section 39.2(d)
in relevant part states:
At
least one public hearing
is
to be held
by
the
county
board
...
no
sooner
than
90
days
but no later than 120 days from receipt of the
request
for
site
approval.
...
The
public
hearing
shall
develop
a
record
sufficient
to
form
the
basis
of
appeal
of
the
decision
in
accordance
with
Section
40.1
of
this
Act.
(Emphasis added).
Section 40.1(a)
specifically prescribes the form of
the
record before this Board
as follows:
“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
the county board
...,
the
transcribed
record
of
the
hearing
held
pursuant
to
subsection
Cd)
of
Section
39.2,
and the
fundamental
fairness of the procedures
used
by
the
county
board
...“
(emphasis
added);
The Board construes the foregoing as
at the very least
evincing
a very strong bias on behalf of the General Assembly in
favor
of transcribed hearing
records as the basis
for decision.
It
is likely that the General Assembly did not anticipate that
a
county or municipality might,
as McLean County here attempts to
do, employ
a dual
record process under which the written
transcription
is reserved solely
for use by this Board on appeal,
while
the County Board members use some other
form of record as
the basis
for
informi.ng their consideration.
As has been noted previously,
the hearing
record now before
this Board
is not the
record previously before the County
Board.
The
record before this Board does not,
cannot,
disclose
the content or quality of the audio tape record before
the County
99—232
—7—
Board.
McLean County essentially urges
this Board
to accept
carte blanche the tape recordings which were made available
to
the County Board members.
This we decline to do.
Further, we hold that tape recordings are inherently
unacceptable as the sole means by which
a member
of
a County
Board or governing body of
a municipality may acquaint himself or
herself with the content
of
a public hearing under Section 39.2
of the Act.
This conclusion
is compelled by the nature
of the
inherent problems and limitations attending tape recordings,
considered together with the practical impossibility of remedying
such deficiencies
as may occur.
Written transcripts may also contain defects,
to
be sure.
Unlike audio tape recordings, however, written transcripts can be
corrected upon motion
of either party.
Moreover, the nature of
the potential flaws and defects
of audio tape records
include
gaps ranging from several minutes
to hours,
human error
(as when
the operator engages the “play” control rather than “record”)
and
accidental over—recording of
a tape track.
The list
of such
potential audio
tape record defects
is not limited
to these few
examples.
The distinguishing features which they have
in common
are that such defects are not readily discernable as
they occur
and are not readily capable of remedying
after
the fact.
In view
of these and other
inherent problems with tape recordings,
including some which are not defects per se
(including the
virtual impossibility of indexing and of efficiently researching
a specific portion or subject
of testimony within
a lengthy audio
tape record),
and the expressed clear preference
of the Act for
written transcription, we conclude that audio tape records are
not acceptable
for purposes of
Section 39.2
of the Act
as the
sole means of ascertaining the content of the hearing record.
More than mere form
is at stake here.
This
is not merely
about the use
of audio tape recordings rather than some other
medium.
Our concern
is,
as noted, with
the very nature
of the
record required by Sections 39.2 and 40.1 of the Act,
and whether
this Board can re—review a hearing record
(i.e.,
the transcribed
hearing record provided
to this Board) which was not capable
of
being reviewed by the County Board
in the first instance.
Our
concern, moreover, transcends the “transcribed record”
requirement
of 40.1(a)
to include the “fundamental fairness”
requirement
as well.
A “record” contained
in an audio
tape
recording which
is incomplete,
inaudible,
or otherwise
incomprehensible
is certainly no more “available”
to decision
makers than
is
a record embodied solely
in
a court reporter
machine’s paper
tape.
Just
as this Board cannot accept the
latter,
it cannot accept
the former.
We do not know the quality
and content of the audio tapes before
the County Board.
We have
been provided no assurance,
in the nature of
a certification,
affidavit
or otherwise,
that the audio tape “record”
is true and
accurate.
We therefore cannot assume their quality and content
99—233
—8—
to be satisfactory as
a basis for consideration of the record,
particularly
in light of
the manifest intent of Sections 39.2 and
40.1
of the Act.
The Board’s conclusion
is bolstered by the facts of this
case.
The transcribed hearing record provided
to this Board on
appeal occupies sixteen volumes
(2,190 pages),
reflecting
the
sixteen days
of hearing held between June 16 and July 8,
1987.
As
in every
local siting proceeding under the Act,
the
substantive issues considered
in this case are complex and
technical.
The common law record which
is
to be assimilated with
the hearing record consists of 623 documents.
The application,
not
including many supplementary maps,
study reports, engineering
drawings and other documents,
is 47 pages
long.
It
is abundantly
clear that this proceeding cannot be adequately reviewed through
the use
of audio tapes.
Even were we
to decide otherwise,
(i.e.,
that audio tapes
could be considered an adequate “hearing record”
for
consideration by the County Board),
the outcome
in
this
proceeding would essentially be the same.
As noted above,
the
“record” before
the Board
is not the
“record” before the County
Board.
It
is axiomatic that this Board can only review on appeal
that record which has been available for consideration in
proceedings below.
Thus, even
if audio tapes were to be allowed,
the transcripts provided
to this Board of necessity would be
required to be based on the audio tapes and suitable
in form for
Board review
(e.g., properly indexed and certified).
For the foregoing reasons,
this matter
is remanded
to the
McLean County Board for reconsideration.
This
remand shall
be
satisfied by consideration of the written transcript delivered
previously
to
this Board
by McLean County.
IT
IS SO ORDERED.
J.
D.
Durnelle and
B.
Forcade dissented.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the~aboveOpinion and Order was
adopted on the
~6~-~-
day of
~27-
,
1989,
by
a vote
of
~
.
/
on Control Board
99—234