ILLINOIS POLLUTION CONTROL BOARD
October 19, 2000
AMERICAN BOTTOM CONSERVANCY, EAST ST.
LOUIS COMMUNITY ACTION NETWORK, KATHY
ANDRIA and JACK NORMAN,
Petitioners,
v.
VILLAGE OF FAIRMONT CITY and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
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PCB 00-200
(Pollution Control Facility Siting Appeal)
YVONNE M. HOMEYER APPEARED ON BEHALF OF PETITIONERS;
JOHN BARICEVIC APPEARED ON BEHALF OF VILLAGE OF FAIRMONT CITY; and
DONALD J. MORAN APPEARED ON BEHALF OF WASTE MANAGEMENT OF ILLINOIS, INC.
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
On May 24, 2000, American Bottom Conservancy, East St. Louis Community Action Network, Kathy
Andria and Jack Norman (petitioners), filed an appeal pursuant to Section 40.1 of the Environmental Protection Act
(Act) (415 ILCS 5/40.1 (1998)) of an April 19, 2000 decision by the Village of Fairmont City (Fairmont City) granting
siting for an expansion of a pollution control facility pursuant to Section 39.2 of the Act (415 ILCS 5/39.2 (1998)).
The expansion was requested for the Milam Recycling and Disposal Facility (Milam RDF) which is owned and
operated by Waste Management of Illinois (WMI). On August 4, 2000, petitioners filed an amended petition for
review. Petitioners assert that the proceedings before Fairmont City were fundamentally unfair and that the decision
to grant siting approval was against the manifest weight of the evidence.
Hearings were held before Chief Hearing Officer John Knittle on August 22 and 23, 2000. The hearings
were held in Belleville, St. Clair County, Illinois. Petitioners filed their brief on September 13, 2000, and a reply brief
on October 3, 2000. Fairmont City filed its brief on September 25, 2000, and WMI filed its brief on September 26,
2000.
1
The Board vacates Fairmont City’s decision granting siting for a pollution control facility expansion to WMI
and remands the proceeding to Fairmont City for rehearing. Based on the record and as explained below, the Board
finds that viewed in combination, various unfair practices rendered the proceedings as a whole fundamentally
unfair.
PRELIMINARY MATTERS
Before proceeding to the merits of the case, the Board must first address a procedural issue and several
motions pending before the Board. The procedural issue concerns Fairmont City’s answer to the petition for review.
1
The transcript of the hearings before the Board will be cited as “Tr. at”; the petitioner’s brief will be cited as “Pet. Br.
at”; the reply brief will be cited as “Reply”; WMI’s brief will be cited as “WMI Br. at” and Fairmont City’s brief will
be cited as “Resp. Br. at”. The Fairmont City record will be cited as “C”.
2
On August 21, 2000, Fairmont City filed an answer to the first amended petition for review. This answer was timely
filed. See 35 Ill. Adm. Code 103.122(d). On September 27, 2000, Fairmont City filed a second answer to the first
amended petition for review. A motion or an explanation as to why it was being filed did not accompany this
answer. The two answers differ to some extent. Therefore, the Board on its own motion strikes the second answer to
the amended petition for review.
On August 23, 2000, the Board received a motion to correct the record on appeal filed by petitioners. In this
motion, petitioners ask the Board to strike Books 1 through 32 as filed by Fairmont City and ask that Fairmont City
be directed to file the remaining exhibits entered at the hearing held before Fairmont City. Also, the petitioners assert
that the transcript of the siting hearing held before Fairmont City is not complete. On October 12, 2000, petitioners
filed a “Memorandum withdrawing petitioners’ motion to correct record on appeal.”
On October 16, 2000, Fairmont City filed a motion to supplement the record. In Fairmont City’s motion to
supplement, Fairmont City seeks to add a copy of the newspaper notice and an affidavit that the notice of hearing
was served by personal service. These items would seem to be the items which were not placed in the record before
the Board but were entered as exhibits in the hearing before Fairmont City.
The Board denies the request to withdraw the motion to correct the record on appeal and grants Fairmont
City’s motion to supplement. As to the remaining issues in the motion filed by petitioners, a review of the transcript
from the siting hearing held before Fairmont City indicates that all 167 pages are included. The pages have been
misnumbered in places, but all are in fact there. The Board therefore denies that part of the motion to correct the
record.
A review of Books 1 through 32 (C00001-C12,709) does not enlighten the Board as to the relevancy of those
items to this siting proceeding. The items contained in those books appear to be documentation for previous
construction and expansion at the landfill site. However, the actual application for the expansion is only two
volumes, Books 33 and 34. C12,710-C13,486. However, in its brief, WMI does cite to items found in Books 1 through
32. As the Board does not believe the inclusion of these items prejudices the petitioners, the Board will not strike the
documents.
On October 6, 2000, WMI filed a motion for leave to file a surreply. On October 12, 2000, petitioners filed a
motion for leave to respond to the surreply. The Board denies both motions.
STATUTORY BACKGROUND
Section 39.2(c) of the Act provides in pertinent part that:
An applicant shall file a copy of its request . . . . All such documents or other materials on file with
the . . . governing body of the municipality shall be made available for public inspection at the
office of the . . . governing municipality and may be copied upon payment of the actual cost of
reproduction.
Section 39.2(d) of the Act provides that:
At least one public hearing is to be held by the county board or governing body of the municipality
no sooner than 90 days but no later than 120 days from receipt of the request for site approval. No
later than 14 days prior to such hearing notice shall be published in a newspaper of general
circulation published in the county of the proposed site, and delivered by certified mail to all
members of the General Assembly from the district in which the proposed site is located, to the
governing authority of every municipality contiguous to the proposed site or contiguous to the
municipality in which the proposed site is to be located, to the county board of the county where
the proposed site is to be located, if the proposed site is located within the boundaries of a
municipality, and to the Agency.
3
Section 40.1(a) of the Act provides in pertinent part:
If the county board or the governing body of the municipality . . . refuses to grant approval under
Section 39.2 of this Act, the applicant may, within 35 days, petition for a hearing before the Board
to contest the decision of the county board or the governing body of the municipality. * * * The
county board or governing body of the municipality shall appear as respondent in such hearing,
and such hearing shall be based exclusively on the record before the county board or the governing
body of the municipality. * * * 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 or the governing body of the municipality, the transcribed record of the hearing held
pursuant to subsection (d) of Section 39.2, and the fundamental fairness of the procedures used by
the county board or the governing body of the municipality in reaching its decision. 415 ILCS
40.1(a) (1998).
FACTS
Many of the facts in this proceeding directly relate to the arguments made by the parties regarding the
fundamental fairness of this proceeding, so the Board will give a brief recitation of the facts at this time and a more
detailed recitation where appropriate.
Milam RDF was originally permitted in 1974 and is located in Fairmont City, a municipality in St. Clair
County. WMI Br. at 3. The facility is located near the intersection of Interstates 55 and 70 and currently accepts
municipal solid waste, demolition waste and construction wastes, and non-hazardous permitted special waste.
Id
.
On November 19, 1999, WMI filed a site location application with Fairmont City for vertical expansion of the Milam
RDF.
Id
. The siting application proposed a vertical expansion above the 176-acre footprint previously sited and
permitted in 1991.
Id
. The siting expansion did not propose any lateral expansion of the facility.
Id
.
The proposed expansion would include disposal capacity of approximately four million tons of municipal
solid waste and non-hazardous special waste. WMI Br. at 3. The vertical expansion would increase the life of the
facility by four years. WMI Br. at 3, citing C12,736.
After the siting application was filed, Kathy Andria attempted to obtain a copy of the siting application
from Fairmont City by contacting Karen Manso the deputy clerk for Fairmont City. Tr. at 50-52. Andria was
informed that the cost of making a copy would be $600-$670. Tr. at 52. Andria offered to take the application to a
copy service herself and was told she could not do that. Tr. at 175. Andria tried to see that application at the Village
Hall. Tr. at 61, 177, and 179. Andria was not able to view the application in person and was told that she must see
Manso, who was not there. Tr. at 146, 281. Andria also testified that she tried calling Manso, but Andria was
unable to reach Manso. Tr. at 62.
WMI did allow Andria to view a copy of the application at the Milam RDF offices and to make copies using
WMI’s copy machine. This was approximately two weeks before the hearing. Tr. at 65. In addition, chief of police
Scott Penny offered to let Andria see the application on one occasion when Andria visited the Village Hall for
another reason. Tr. at 61, 62, and 401. However, she did not have time to view it that day. Tr. at 61, 62, and 402.
There were three different public notices for the siting hearing. Each appeared in the
Belleville New-
Democrat
with three different dates for the siting hearing. Tr. at 82-84. A notice appeared on February 23, 2000,
noticing a hearing on Monday, March 13, 2000. Pet. Exh. 14. A second notice appeared on February 29, 2000,
noticing a hearing for Monday, March 17, 2000. Pet. Exh. 15. A third notice appeared on March 1, 2000, noticing a
hearing for Friday, March 17, 2000. Pet. Exh. 16.
On March 17, 2000, a public hearing was held before Fairmont City. C13,734-13,897. WMI made available
for questioning at Fairmont City’s hearing the individuals who drafted the reports in WMI’s application.
Id
.
Petitioners, Andria and Jack Norman, participated in the hearing and asked questions of WMI. Andria was
4
representing the remaining two petitioners at Fairmont City’s siting hearing. Tr. at 12. On April 19, 2000, Fairmont
City approved the siting. C13,898-13,901.
The hearing officer for the siting hearing was Grey Chatham, who is the brother-in-law to Fairmont City’s
attorney, John Baricevic. Pet. Exh. 3. At the public hearing, the hearing officer did not allow petitioners to review
the exhibits offered by Fairmont City and WMI. C13,761. The hearing officer also denied admission for exhibits
offered by petitioners. C13,888-13,892.
After the close of the hearing, petitioners asked for a copy of the hearing transcript. Tr. at 95. However the
transcript was not available, according to Fairmont City, until May 9, 2000, after the close of the public comment
period (April 16, 2000, Tr. at 97). Tr. at 113-114; Pet. Exh. 25.
On April 19, 2000, the Fairmont City village trustees determined that WMI had met the nine statutory
criteria. The trustees voted to allow the expansion of Milam RDF. The vote was six to zero. C13,898-13,901.
FUNDAMENTAL FAIRNESS
In this section the Board will address the issue of whether the proceedings were fundamentally fair. The
Board will begin by summarizing existing case law on the issue of fundamental fairness. Next, the Board will
summarize the arguments of the petitioners. The Board will follow with a discussion of Fairmont City’s arguments
and WMI’s arguments. Finally, in this section the Board will discuss the reply filed by petitioners. The Board will
then analyze the arguments and render its decision on the fundamental fairness of the proceeding.
Summary of Pertinent Case Law
As discussed above, the Board must review the proceedings before the local siting authority to determine if
the proceedings were fundamentally fair. The courts have given the Board some guidance on this issue. In E & E
Hauling v. Pollution Control Board, (E & E Hauling v. PCB) 116 Ill. App. 3d 586, 451 N.E.2d 555 (2nd Dist. 1983)
aff’d 107 Ill.2d 33, 481 N.E.2d 664 (1985), the court indicated that fundamental fairness refers to the principles of
adjudicative due process and a conflict of interest itself could be a disqualifying factor in a local siting proceeding if
the bias violates standards of adjudicative due process. E & E Hauling v. PCB 451 N.E.2d 555, 564. Further in E & E
Hauling v. PCB 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 & Resources v. Illinois Pollution Control Board, 227 Ill. App. 3d 533, 592 N.E.2d 148 (1st Dist.
1992); Tate v. Macon County Board, 188 Ill. App. 3d 994, 544 N.E.2d 1176 (4th Dist. 1989). 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, 175 Ill. App. 3d 1023, 530 N.E.2d
682 (2nd Dist. 1989).
The courts have indicated that the public hearing before the local governing body is the
most critical stage of the site approval process. Land and Lakes Co. v. Pollution Control Board,
245 Ill. App. 3d 631, 616 N.E.2d 349, 356 (3rd Dist. 1993).
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 important, but not rigid, elements in assessing fundamental fairness. Hediger v. D & L
Landfill, Inc. (December 20, 1990), PCB 90-163.
The courts have also indicated that fundamental fairness
must include the opportunity to be heard and impartial rulings on evidence. Daly v. Pollution
Control Board (Daly v. PCB) 462 Ill. App. 3d 968, 637 N.E.2d 1153, 1155 (1st Dist. 1994).
Petitioners’ Arguments
5
The petitioners assert that the proceedings before Fairmont City were fundamentally unfair in five respects.
First, petitioners assert that the application was not available to them prior to the public hearing. Second, petitioners
argue that there was confusion regarding the actual date of the public hearing. Third, the petitioners contend the
public hearing on the siting applications was conducted unfairly. Fourth, petitioners maintain that the proceedings
were fundamentally unfair because the transcript of the public hearing was not made available to the petitioners
prior to the close of the public comment period. Finally, petitioners argue that the unavailability of the public
hearing transcript between the close of the public comment period and the deadline for this appeal rendered the
proceedings fundamentally unfair.
Petitioners assert that the application was not available to them prior to the public hearing
Kathy Andria testified that she attempted to obtain a copy of the siting application from Fairmont City, by
contacting Karen Manso, the deputy clerk for Fairmont City. Pet. Br. at 6. Andria testified that she contacted Manso
to try to obtain such a copy in early December 1999. Pet. Br. at 5, citing Tr. at 51. Andria was informed that the cost
of making such a copy would be $600-$670. Tr. at 52. Andria offered to take the application to a copy service
herself and was told she could not do that. Tr. at 175. Andria asked that the photocopying costs be placed in
writing and sent to her. Tr. at 52; Pet. Exh. 10. As photocopying was cost prohibitive, Andria tried to see the
application at the Village Hall. Tr. at 61, 177, and 179. Andria was not able to view the application in person and
was told that she must see Manso, who was not there. Tr. at 146, 281. Andria also testified that she tried calling
Manso, but Andria was unable to reach Manso.
WMI did allow Andria to view a copy of the application at the Milam RDF offices. WMI also allowed
Andria to make copies using WMI’s copy machine, approximately two weeks before the hearing. Pet. Br. at 8. In
addition, chief of police Scott Penny offered to let Andria see the application on one occasion when Andria visited
the Village Hall for another reason. Tr. at 61, 62, and 401. However, she did not have time to view it that day. Tr.
at 61, 62, and 402.
Petitioners argue that the quoted cost for photocopying was excessive and set forth two arguments for that
proposition. First, petitioners assert that a copy of the application was given to an attorney for a cost of $120. Pet.
Br. at 7. In support of this assertion, petitioners point to the testimony of Andria wherein she stated Manso told her
that such a copy was provided. Tr. at 56. Also, Penny testified that the attorney received a copy of both binders of
the application. Tr. at 407. Lastly, Fairmont City’s sign-in log indicates that the same attorney did look at the
application on January 14, 2000. C13,732.
Petitioners’ second argument is that the application is only 776 pages in total. Even at 22 cents a page (the
highest quoted price in the letter from Manso to Andria) the total should have been no more than $170. Reply at 11.
Thus, the petitioners argue, Fairmont City quoted a price which was substantially more than the actual cost of
reproduction contrary to Section 39.2(c) of the Act (415 ILCS 5/39.2(c)(1998)). Pet. Br. at 8.
Petitioners argue that they were prejudiced by the inability to obtain a copy of the application and to view
it. By the time WMI had allowed the petitioners to view a copy of the application at the Milam RDF it was a mere
two weeks before the siting hearing. Pet. Br. at 8. Petitioners contend that they did not have sufficient time in those
two weeks to adequately analyze the technical material, consult with experts who could analyze the technical
material, or to prepare questions that “fairly met the technical substance of the material.” Pet. Br. at 8-9.
Petitioners argue that there was confusion regarding the actual date of the public hearing
Three different public notices appeared in the
Belleville News-Democrat
with three different dates for the
siting hearing. Tr. at 82-84. A notice appeared on February 23, 2000, noticing a hearing on Monday, March 13,
2000. Pet. Exh. 14. A second notice appeared on February 29, 2000, noticing a hearing for Monday, March 17,
2000. Pet. Exh. 15. A third notice appeared on March 1, 2000, noticing a hearing for Friday, March 17, 2000. Pet.
Exh. 16. The hearing was held on Friday, March 17, 2000.
6
Petitioners argue that the confusion over hearing dates prejudiced petitioners because until after Monday,
March 13, petitioners could not be sure that the correct date would be Friday, March 17. Pet. Br. at 11. Andria
drove by the Village Hall on Monday, March 13 to see if a hearing was taking place. Tr. at 87. Andria testified that
she would have liked to have had “several people at the hearing but it was difficult to ask, since the date of the
hearing was not certain.” Pet. Br. at 11, citing Tr. 88 and 89.
Petitioners contend the public hearing on the siting application was conducted unfairly
Petitioners argue several very specific reasons why they believe the hearing was conducted unfairly. First,
petitioners maintain that the hearing officer, Grey Chatham, was biased against them and that the bias arises from
his relationship with the attorney for Fairmont City, John Baricevic. Next, they argue that the hearing was unfair
because petitioners had the burden of putting on testimony. Third, they argue that the inability to view exhibits
during the hearing was unfair. Finally, they argue that the hearing officer’s failure to admit Andria’s exhibits made
the proceedings unfair. The Board will address each argument in turn.
Petitioners point out that Chatham is Baricevic’s brother-in-law. Pet. Br. at 12, citing Pet. Exh. 3. Further,
petitioners maintain that the two attorneys share an office at 4010 N. Illinois Street in Belleville with a common
waiting area and phone number. Pet. Br. at 12-13, citing Pet. Exh. 5 and Pet. Exh. 6; Tr. at 18-20.
Petitioners argue that the hearing officer had a personal relationship with the “agent for the governing body
that made it impossible for him to be impartial.” Pet. Br at 13. Petitioners assert that the hearing officer acted
arbitrarily throughout the hearing and that his conduct demonstrated prejudice. Pet. Br. at 12-13.
Petitioners also argue that the hearing was unfair because WMI did not provide testimony at the hearing.
WMI’s attorney summarized the application and asked that it be admitted. WMI indicated it would not call
witnesses but witnesses were available for questioning. C13,755-13,756. Petitioners assert that because they did not
have access to the application the failure to put on witnesses placed “an incredible burden on” petitioners. Pet. Br. at
15.
Third, petitioners contend that the hearing officer’s refusal to allow them to review the application during
the hearing was unfair and prejudiced them. Petitioners were unable to compare the actual application with the
materials they had copied from WMI and could not know for sure that they had the right materials. Pet. Br. at 15-
16. Further, because petitioners could not view the evidence, they were denied the right to object to evidence that
was presented. Reply at 9-10.
Finally, the petitioners assert that the public hearing on the siting application was unfair because petitioner
Andria’s evidence was not admitted. Petitioners point to the transcript and argue that the hearing officer repeatedly
assured Andria that her evidence could be introduced. Pet. Br. at 17. However, when Andria actually tried to
introduce evidence, the hearing officer denied the admittance of “all of them except the Cahokia Mounds brochure.”
Pet. Br. at 17. Specifically, the hearing officer denied admittance of a flood plain map because it was outdated
(C13,888), a prospectus from WMI because of lack of relevance (C13,889), a corporate profile of WMI because of
hearsay (C13,890), the publication notices because they were already in the record (C13,891), and a letter indicating
the cost of copying the application because it was already discussed on the record (C13,892).
Petitioners acknowledge that the hearing officer told them the items could be included as public comment.
Pet. Br. at 17. However, petitioners argue that public comment is given less weight than evidence and cite to CDT
Landfill Corp. v. City of Joliet (March 5, 1998), PCB 98-60 to support this proposition. Also, petitioners argue,
fundamental fairness requires that the petitioners be given a full and fair opportunity to present evidence. Residents
Against a Polluted Environment v. Pollution Control Board, 293 Ill. App. 3d 219, 687 N.E.2d 552, 555-556 (3rd Dist.
1997). Petitioners argue that under Daly v. PCB “a fair hearing in a local siting hearing must include the
opportunity to be heard and impartial rulings on the evidence.” 637 N.E.2d 1153, 1155. Thus, petitioners assert that
the hearing officer’s rulings deprived the petitioners of a fair hearing.
7
Petitioners maintain that the proceedings were fundamentally unfair because the transcript of the public hearing
was not made available to the petitioners prior to the close of the public comment period
Petitioners argue that Fairmont City was required to make a copy of the transcript from the public hearing
available to them pursuant to Section 39.2(c) of the Act (415 ILCS 5/39.2(c) (1998)) and the failure to provide a copy
prejudiced the petitioners. Pet. Br. at 24. Petitioners point out that the Board has determined that failure to make
available a transcript can render the siting proceeding fundamentally unfair. Pet. Br. at 24, citing SPILL v. City of
Madison (March 21, 1996), PCB 96-91 and Sierra Club v. City of Wood River (October 5, 1995), PCB 95-174.
The testimony of Penny indicates that the transcript was “lost” because it was shipped in a photocopy box.
Tr. at 403-404. Penny indicated that the transcript was misplaced with supplies and then was found.
Id
. However,
in a letter dated May 8, 2000, the village clerk indicated that the transcript had not yet been received. Pet. Br. at 24
citing Pet. Exh. 24. In any event, a copy was not provided to petitioners upon their request. Pet. Br. at 26.
Petitioners, Andria and Norman both testified that they were unable to provide detailed public comment because
they did not have a copy of the transcript. Tr. at 93, 367-368.
Petitioners argue that the unavailability of the public hearing transcript between the close of the public comment
period and the deadline for this appeal rendered the proceedings fundamentally unfair
On May 10, 2000, Fairmont City informed Andria that the transcript was available and if she would send a
check a copy would be sent to her. This was after the close of the public comment period and after the vote was
taken on the siting application. May 10, 2000, was not outside the 35-day appeal period for an appeal of the siting
decision to the Board. Petitioners maintain that they would have received the transcript after the time to appeal the
siting decision had run. Pet. Br. at 26. Petitioners argue that they were prejudiced because they could not refer to
the public hearing transcript in preparing the petition for review. Pet. Br. at 26.
Fairmont City’s Arguments
Fairmont City responds to the arguments of petitioners with four general arguments. First, Fairmont City
maintains that the application was available. Second, Fairmont City contends that the multiple public notices did
not prejudice petitioners. Third, Fairmont City asserts that the siting hearing was fair. And last, Fairmont City
argues that the unavailability of the transcript from the public hearing on the siting application did not prejudice
petitioners. The Board will discuss each argument in turn.
8
Fairmont City maintains that the application was available
Fairmont City asserts that from November 19, 1999, until March 17, 2000, the application for expansion of
the Milam RDF was available for review. Resp. Br. at 2. Fairmont City asserts that Andria made only two visits to
the Village Hall and when she learned that Manso was not there she did not ask “for someone else to help her.”
Id
.
Further, Fairmont City argues that Andria did not need to go through Manso to review the application. Resp. Br. at
2, citing Pet. Exh. 10. Fairmont City also argues that Penny offered to allow Andria to view the application but “she
was too busy” and would come back later. Pet. Br. at 2. Fairmont City asserts that Andria has been involved in
three other siting cases, she has access to the chief of police and village attorney, and the application was available,
but she chose not to view it. Resp. Br. at 2-3.
Fairmont City also argues that petitioners can cite no authority that the inability to purchase a copy of the
application is a violation of fundamental fairness. Resp. Br. at 3. Also, Fairmont City asserts that the record is silent
on how many pages of the application were copied for the attorney who received a copy for $120 or whether any
facts may have changed between the time of the inquiry by Andria and the attorney’s purchase.
Lastly, Fairmont City maintains that Andria did eventually obtain a copy of the application. Fairmont City
notes that there is no testimony from Andria about any additional facts or witnesses that might have been presented
if Andria had earlier purchased a copy of the application. Resp. Br. at 3. Fairmont City points out that Andria
“makes general comments about technical aspects of the application but has presented no names of proposed
witnesses” she might have presented had she had earlier access to the application. Resp. Br. at 3.
Fairmont City contends that the multiple public notices did not prejudice petitioners
Fairmont City asserts that the notice need only place a potentially interested person in a position to inquire
about details of the activities. Resp. Br. at 5, citing Tate v. Illinois Pollution Control Board (Tate v. PCB) 188 Ill.
App.3d 994, 544 N.E.2d 1176 (4th Dist. 1989). Fairmont City contends that the multiple notices were necessary to
correct printer’s errors in the first two notices. Resp. Br. at 4. Fairmont City asserts that petitioners have waived this
issue and even if waiver does not apply, petitioners cannot demonstrate that the multiple notices prejudiced them.
Fairmont City asserts that the siting hearing was fair
Fairmont City denies that a business relationship exists between the hearing officer and Fairmont City’s
attorney, although they are brothers-in-law. Fairmont City argues that this fact does not rise to a conflict of interest.
Further, Fairmont City asserts that the rulings by the hearing officer denying admission of the documents were
appropriate because no witnesses were presented to lay proper foundation for the introduction of the exhibits. Resp.
Br. at 7. Fairmont City also disputes that the petitioners were required to present testimony and that the petitioners
did not have a copy of the application. Resp. Br. at 6.
Fairmont City argues that the unavailability of the transcript from the public hearing on the siting application did
not prejudice petitioners
Fairmont City asserts that the transcript was not made available to the petitioners due to a “clerical error”
by Fairmont City. Resp. Br. at 7. As petitioners did not request an extension of the public comment period, Fairmont
City contends that petitioners have waived objection.
Id
. Fairmont City argues that if waiver does not apply,
petitioners have not shown prejudice.
Id
.
WMI’s Arguments
WMI argues that the petitioners’ arguments lack any legal or factual support. WMI Br. at 2. WMI asserts
that fundamental fairness assures each party an opportunity to be heard at a siting hearing including the right to
present evidence and cross-examine witnesses.
Id
. WMI maintains that fundamental fairness does not “protect a
party from its own negligence or lack of diligence.”
Id
. WMI sets forth several arguments in response to the issues
raised by petitioners. First, WMI contends that petitioners are experienced siting participants. Second, WMI asserts
9
that the proceedings before Fairmont City were fundamentally fair as the application was available and there was no
confusion regarding the date of the siting hearing. Third, WMI contends that the siting hearing was fundamentally
fair because the hearing officer did not suffer from bias, petitioners are responsible for preparing or presenting
evidence at the public hearing, petitioner had the siting application during the siting hearing and the hearing officer
properly excluded evidence. Fourth, WMI asserts that the unavailability of the siting hearing transcript did not
prejudice the petitioners. The Board will examine each of these arguments in turn.
WMI contends that petitioners are experienced siting participants
WMI argues that Andria is an experienced participant in the siting process and has been involved in three
prior proceedings. WMI Br. at 7. WMI contends that Andria’s own experience “undermines” the claims of
fundamental unfairness because Andria “clearly understood the statutory timelines involved in these proceedings.”
WMI Br. at 7-8, citing Tr. at 158-160, 82, 63, 97, 102, 92-93, and 112. WMI asserts that Andria was not prejudiced
by “her failure to obtain or view a copy of the siting application, by conduct of the public hearing, or by any
confusion of public hearing notices. The only prejudice Ms. Andria suffered was due to her own inability or failure
to seek information and to plan, organize and prepare the evidence or case she intended to present,” according to
WMI. WMI Br. at 9.
WMI asserts that the proceedings before Fairmont City were fundamentally fair as the application was available and
there was no confusion regarding the date of the siting hearing
WMI argues that the siting application was available and that Andria is not prejudiced by being unable to
get a copy of the application but by “her own decision to not resolve the cost issue.” WMI Br. at 11. WMI argues
that Andria admits they did not pursue getting a copy because “we didn’t have that money” (Tr. at 54, 61) and that
Andria never approached anyone at Fairmont City until the public hearing about the cost. WMI Br. at 11, citing Tr.
at 173, 177. WMI maintains that if cost were truly “an insurmountable obstacle” petitioners could have viewed the
siting application at the Village Hall. WMI Br. at 11.
As to viewing the siting application at the Village Hall, WMI asserts that Andria’s failure to do so “rested
solely on her own schedule and her own decision to make time to” view the siting application. WMI Br. at 12. WMI
maintains that Andria only “clearly remembers going once to view the application” at the Village Hall. WMI 12.
WMI asserts that Andria “assumed” she had to see Manso, but when Manso was not available, Andria did not ask
to see the “receptionist’s supervisor” about seeing the siting application. WMI Br. at 12. Andria did not ask anybody
else if she could view the siting application and she never called the mayor or Penny. WMI Br. at 12.
WMI further argues that Andria was given the opportunity by WMI to copy the complete application but
chose not to. WMI Br. at 13. WMI argues that it was the petitioners’ discomfort and “deliberate choice” in not
copying the entire application at WMI”s offices.
Id
.
WMI next argues that there was no confusion regarding the hearing dates. WMI Br. at 14. WMI points out
that the correct hearing date was published on March 1 and allowed 16 days notice before the start of the public
hearing. WMI contends that Andria claims the confusion over the date of the hearing caused prejudice because she
could not confirm hearing dates and was unable to coordinate witnesses. WMI Br. at 15. However, WMI maintains
that after determining that the siting hearing was on March 17, Andria did not contact any person to testify at the
hearing. WMI Br. at 15. Further, WMI asserts that Andria claims that “instead of looking at the siting application,
she had to try and find out about the hearing and ‘had to go and see what was happening.’ (Tr. at 88.) This
consisted of going to the Village Hall once, calling WMI once, and then calling the Village Hall again. (Tr. at 86-88.)”
WMI Br. at 15.
WMI contends that the siting hearing was fundamentally fair because the hearing officer did not suffer from bias,
petitioners are responsible for preparing or presenting evidence at the public hearing, petitioner had the siting
application during the siting hearing and the hearing officer properly excluded evidence
10
WMI first asserts that any claim of bias against the hearing officer is waived because it was not raised
below. WMI Br. at 16. WMI asserts that the petitioners learned that the hearing officer and Fairmont City’s attorney
shared office space the day after the hearing, at the very start of the public comment period. WMI argues that
petitioners’ failure to raise the issue then deprived Fairmont City of an opportunity to address the issue and the right
to raise the issue is waived. WMI Br. at 16-17, citing A.R.F. Landfill v. Pollution Control Board, 174 Ill. App. 3d 82,
528 N.E.2d 390, 394 (2nd Dist. 1988).
WMI next argues that the hearing officer was not the decisionmaker and he made no recommendations and
presented no findings to Fairmont City. WMI Br. at 17. Therefore, WMI contends, his role was not relevant to
fundamental fairness. WMI Br. at 17, citing Citizens Against Regional Landfill v. Pollution Control Board, 255 Ill.
App. 3d 903, 627 N.E.2d 682, 685 (3rd Dist. 1994). Further, WMI asserts, petitioners have no evidence that the
relationship with Fairmont City’s attorney affected the hearing officer’s impartiality or conduct of the hearing. WMI
Br. at 18. Finally regarding the hearing officer, WMI asserts that the hearing officer did not exhibit bias. WMI Br. at
18.
WMI argues that the petitioners’ claim that WMI must put on witnesses is “legally and logically
preposterous.” WMI Br. at 20. WMI maintains that the application itself contains the facts and evidence supporting
the site location request and experts are not required to be called as a witness in a siting hearing. WMI Br. at. 20,
citing Concerned Adjoining Owners v. Pollution Control Board, 288 Ill. App. 3d 565, 680 N.E.2d 810 (5th Dist.
1997). WMI points out that the application itself contains the applicant’s case and it is up to the objectors to present
evidence to dispute the siting application. WMI argues that it made available the experts who had prepared reports
for examination at the public hearing and petitioners questioned whomever they chose. WMI Br. at 21.
As to the availability of the siting application at the hearing, WMI asserts that the petitioners had access to
the siting application during the hearing. WMI Br. at 22. WMI argues that because petitioners were allowed to copy
the application at WMI’s offices prior to the siting hearing, petitioners did have a copy.
Id
.
WMI lastly argues that the exhibits offered by Andria were properly excluded based on fundamental
evidentiary principles (WMI Br. at 22): the flood plain map “was neither current nor accurate” based on unrebutted
testimony (WMI Br. at 22); the Waste Management Prospectus and SEC statements were not relevant, (WMI Br. at
23-24); the public notice of a March 13 hearing was not probative; and the letter regarding the cost of copying the
siting application was cumulative (WMI Br. at 23). Thus, all were properly excluded according to WMI.
WMI asserts that the unavailability of the siting hearing transcript did not prejudice the petitioners
WMI concedes that the Board has determined that the transcript from the siting hearing must be made
available by the local governing body in Sierra Club v. City of Wood River (October 5, 1995), PCB 95-174. However,
WMI disagrees with the Board’s finding and argues that the Board should overturn the decision in Sierra Club v.
City of Wood River (October 5, 1995), PCB 95-174. WMI Br. at 24-25. WMI asserts there is no basis in the statutory
language or public policy to require local governing bodies to provide transcripts of the public hearing during the
written comment period. WMI Br. at 26.
WMI further argues that even if the local governing body must make the transcript available, petitioners
were not prejudiced by the inability to review the transcript. WMI Br. at 27. WMI asserts that petitioners submission
of public comments “disproves any claim of prejudice.” WMI Br. at 27. WMI asserts that the petitioners were not
prevented from submitting public comments, and were not prejudiced because the hearing transcript was only 167
pages and consisted of information available in the application, or through testimony elicited through cross-
examinations by petitioners. WMI Brief at 28-29.
WMI argues that this is the “third time” Andria has made the claim that the hearing transcript was
unavailable. WMI Br. at 29. WMI argues that Andria could have “heeded the information given to her in Sierra
Club” and contacted the court reporter. WMI Br. at 29. WMI argues that Andria’s failure to do so “indicates that
she either did not believe the transcript was necessary to prepare her written comment, or she intended for tactical
reasons to rely exclusively on the Village for the transcript.” WMI Br. at 29.
11
WMI also argues that the transcript was available to petitioners in preparing their petition for review. WMI
Br. at 30. WMI points out the petition for review was filed on May 23, 2000, two weeks after Andria received the
letter that the transcript was available.
Id
.
Petitioners’ Reply
In the reply, petitioners raise the issue of jurisdiction for the first time. Specifically, petitioners argue that
the failure to include Village Exhibit 1 from the siting hearing in the record is a fatal flaw to jurisdiction. Reply at 2.
Petitioners maintain that Fairmont City is required to give notice of the siting hearing and the exhibit introduced at
the siting hearing was “purporting to show compliance with this jurisdictional requirement.” Reply at 2. That
exhibit was not included in the record on appeal (see above at page 2). Reply at 2. Petitioners maintain that the
“inescapable conclusion is that the exhibit would show that the Village failed to serve all parties” under the Act.
Reply at 3.
Petitioners also argue in their reply that they have properly raised the issue of hearing officer bias as the
relationship between Fairmont City’s attorney and the hearing officer was not known until petitioners had hired
their own attorney. Thus raising the issue at this time is appropriate according to the petitioners. Reply at 3-4.
Petitioners assert that WMI’s brief is “full of references to the alleged extensive experience of Ms. Andria
about siting hearings.” Reply at 5. Petitioners argue that WMI is arguing that because of that experience, Andria
should be held to a different standard than another public citizen. Reply at 5. Petitioners assert that there is not
provision in the law and WMI has cited not legal authority for “categorizing members of the public according to how
much experience they may have had with siting hearings.” Reply at 5. Further, petitioners maintain that WMI
blames Andria for “putting herself” in the situation created by Fairmont City so that Andria would have grounds for
appeal. Reply at 6. Petitioners contend that the evidence in the record of the irregularities make it “absurd to claim
that Ms. Andria set out to entrap” Fairmont City.
Id
.
DISCUSSION
Jurisdiction
Although petitioners raise the issue of jurisdiction in their reply brief, the Board finds that the issue is moot.
Fairmont City has supplemented the record with proof that notice was properly given for the hearing pursuant to
Section 39.2(d) of the Act. Section 39.2(d) of the Act provides that:
At least one public hearing is to be held by the county board or governing body of the municipality
no sooner than 90 days but no later than 120 days from receipt of the request for site approval. No
later than 14 days prior to such hearing notice shall be published in a newspaper of general
circulation published in the county of the proposed site, and delivered by certified mail to all
members of the General Assembly from the district in which the proposed site is located, to the
governing authority of every municipality contiguous to the proposed site of contiguous to the
municipality in which the proposed site is to be located, to the county board of the county where
the proposed site is to be located, if the proposed site is located within the boundaries of a
municipality, and to the Agency.
In this appeal, the Board does have in the record proof that the notice of hearing was timely published in the
newspaper of general circulation published in the county of the proposed site. See Pet. Exh. 16 and Fairmont City’s
motion to supplement. Therefore, the Board finds that the issue of whether Fairmont City had jurisdiction is moot.
The Board will examine the issue of notice of Fairmont City’s hearing only in the context of fundamental fairness.
Fundamental Fairness
The Board will now consider the issue of whether the proceedings were fundamentally fair. First, the Board
will examine the issue of whether the siting application was available to the petitioners. Second, the Board will
12
determine whether the multiple notices of hearing lead to confusion and a fundamentally unfair proceeding. The
Board will then decide whether the public hearing was conducted unfairly. Finally, the Board will decide if the
failure to provide the petitioners with a copy of the siting hearing transcript lead to a fundamentally unfair
proceeding.
Section 39.2(c) of the Act provides in pertinent part that:
An applicant shall file a copy of its request . . . . All such documents or other materials on file with
the . . . governing body of the municipality shall be made available for public inspection at the
office of the . . . governing municipality and may be copied upon payment of the actual cost of
reproduction.
Thus, the language of the Act is explicit that a copy of the application must be available for inspection and copying
at the actual cost of reproduction.
The following facts are not disputed: Andria was not able to view the application at Fairmont City; the costs
of copying the application were quoted to Andria at $600-$670; a copy of the application was provided to an
attorney at a cost of $120; that same attorney is the only person who signed in and viewed the application at
Fairmont City’s Village Hall. Also uncontested is that when Andria went to view the application, the deputy clerk
was not available. Andria’s testimony is also that she called the deputy clerk to make an appointment but the clerk
was not available.
WMI and Fairmont City insist that had Andria asked someone else she would have been able to view the
application. They also point out that on one occasion she was offered the opportunity to view the application, but
Andria turned it down. Also, WMI allowed petitioners to make a copy of the application two weeks before the siting
hearing. Therefore, respondents are arguing that any prejudice in the proceeding was created by the petitioners.
The arguments of WMI and Fairmont City do not persuade the Board. First, WMI’s act to allow WMI
access to the application does not alleviate Fairmont City of its statutory obligation to provide access to the
application. Section 39.2(c) of the Act (415 ILCS 3/39.2(c) (1998)). Second, the fact that on one occasion when
Andria visited Fairmont City Village Hall on other business and the chief of police offered to show Andria the
transcript also does not alleviate the problem. The clerk has a full time job so Andria contacted the deputy clerk. Tr.
at 283. However, the deputy clerk was not available and did not return calls. Tr. at 62. Petitioners and members of
the general public should not be forced to inquire of every person in and around the Village Hall in order to examine
a siting application.
Further, the Board has previously held that failure to make even one volume of an application unavailable
for public inspection renders the proceeding fundamentally unfair. See Residents Against a Polluted Environment v.
LaSalle County (September 19, 1996), PCB 96-243. In this case the inability of petitioners to review any part of the
siting application until two weeks prior to the hearing did prejudice the petitioners as they were less able to prepare
for the siting hearing. The Board finds that Fairmont City’s failure to have the application available for inspection
renders these proceedings fundamentally unfair.
However, the unavailability of the siting application is by no means the only part of this issue the Board
finds questionable. Also of concern, is the fact that after a written estimate for the cost of copying was sent to
petitioners, Fairmont City provided a copy to a third-party at a substantially reduced price. Fairmont City failed to
inform petitioners of the lower cost until the siting hearing. Thus, the Board finds that Fairmont City also failed to
meet its statutory obligation to provide a copy of the siting application at the actual cost of copying. Section 39.2(c)
of the Act (415 ILCS 3/39.2(c) (1998)).
Next, the petitioners have argued that the multiple notices created confusion and led to the proceedings
being fundamentally unfair. The Board disagrees. The published final notice clearly and accurately reflected the
hearing date and contained all the information required by the Act. The previous public notices were incorrect and
13
to clear up any confusion additional publication was undertaken. The Board does not find this fundamentally
unfair.
The petitioners also argue that the siting hearing was conducted in a fundamentally unfair manner. In
support of this argument, petitioners argue that the hearing officer was biased, WMI should have put on witnesses,
the hearing officer refused to allow petitioners to view the exhibits, and petitioners’ exhibits were improperly denied
admittance. Here again the Board is not wholly persuaded by petitioners’ arguments. First, the Board does not
believe the fact that the hearing officer and the Fairmont City attorney were brothers-in-law and shared office space
is sufficient to find a disqualifying bias. Also, the failure of the hearing officer to allow petitioners to view the
exhibits was based on his belief that petitioners had sufficient time before the hearing to review the siting application.
Thus, the hearing officer’s ruling that petitioners could not view the exhibits at hearing is not inherently biased.
Therefore, the evidence in this record does not lead the Board to a finding that the hearing officer was biased and the
ruling alone is not fundamentally unfair. This finding is consistent with previous Board precedent as the hearing
officer was not the decisionmaker in this proceeding. See, Citizens Against Regional Landfill v. Pollution Control
Board, 255 Ill. App. 3d 903, 627 N.E.2d 682, 685 (3rd Dist. 1994), citing Fairview Area Citizens Taskforce v. Pollution
Control Board, 198 Ill. App. 3d 541, 555 N.E.2d 1178 (3rd Dist. 1990).
Regarding the failure of WMI to put on witnesses the Board finds that this does not render the proceedings
fundamentally unfair. See Concerned Adjoining Owners v. Pollution Control Board, 288 Ill. App. 3d 565, 680
N.E.2d 810 (5th Dist. 1997). WMI had available witnesses to answer questions. Petitioners did ask to question
several witnesses and WMI provided the witnesses. WMI established the credentials of the witnesses and then
allowed petitioners to question WMI’s experts regarding the application. WMI merely chose to introduce the
application and stand on the merits. This alone does not render the proceedings fundamentally unfair.
Finally, with regards to the exhibits which were not admitted at the siting hearing, the Board finds that the
prospectus from WMI (C13,889), and the corporate profile of WMI (C13,890) were properly excluded. However, the
Board also finds that the hearing officer’s failure to include the flood plain map (C13,888), the publication notices
(C13,891), and a letter indicating the cost of copying the application (C13,892) were inappropriate. Standing alone
such a ruling may not render the proceeding fundamentally unfair, yet when the proceeding is considered as a
whole, this finding contributes to the fundamentally unfair nature of the proceeding. Concerned Citizens for a
Better Environment v. City of Havana (May 19, 1994), PCB 94-44.
The last issue raised is whether the unavailability of the transcript from the siting hearing renders the
proceedings fundamentally unfair. The Board finds that the failure to provide a copy did prejudice the petitioners
and as a result rendered the process fundamentally unfair. WMI and Fairmont City insist that the petitioners’
inaction led to any prejudice. The Board disagrees. Petitioners timely sought a copy of the hearing transcript from
Fairmont City. Fairmont City indicated that it did not have the transcript until May 9 after the close of the public
comment period. The Board notes that, the ordinance approving the siting indicates that the village trustees
reviewed “all relevant expert testimony” yet according to the information provided to Andria, the transcript was not
yet available. C13,901, Tr. at 113-114.
The Board has previously held that failure to make available a transcript can render the siting proceeding
fundamentally unfair. SPILL v. City of Madison (March 21, 1996), PCB 96-91 and Sierra Club v. City of Wood River
(October 5, 1995), PCB 95-174. Although the Board did not find the proceeding fundamentally unfair in Sierra Club
v. City of Wood River (October 5, 1995), PCB 95-174, the Board is convinced that the facts in this case more closely
resemble SPILL v. City of Madison (March 21, 1996), PCB 96-91 wherein the Board did find the proceedings
fundamentally unfair. Unlike Sierra Club v. City of Wood River, the transcript was not available at the Village Hall;
Wood River had made the transcript available. Further, in this proceeding, petitioners did not tape the siting hearing
as they did in Sierra Club v. City of Wood River. Also, the petitioners were not told to contact the court reporter as
they were in Sierra Club v. City of Wood River. The petitioners in this instance took the appropriate steps to review
the transcript in this proceeding and the transcript was not made available for public review. The transcript was
“lost” and not provided until after the close of public comments.
14
Respondents argue that the fact that public comments were filed by petitioners proves they were not
prejudiced. The Board disagrees. Both petitioner Andria and petitioner Norman stated that they were prejudiced by
not having the transcript.
CONCLUSION
The Board finds that the failure to provide adequate opportunity for petitioners to inspect the siting
application along with the unavailability of the siting hearing transcript rendered the proceeding before Fairmont
City fundamentally unfair. “Where fundamental fairness requires supplemental proceedings before the local
governing body, the Board may remand the cause to that body for additional proceedings.” Land and Lakes
Company v. Pollution Control Board, 245 Ill. App. 3d 631, 616 N.E.2d 349, 357 (3rd Dist. 1993). The Board finds
that the pattern of errors which occurred in this proceeding can be cured by remanding this matter to Fairmont City
for new proceedings. See Land and Lakes Company v. Pollution Control Board, 245 Ill. App. 3d 631, 616 N.E.2d
349, 357 (3rd Dist. 1993); Laidlaw Waste Systems, Inc. v. Pollution Control Board, 230 Ill. App. 3d 132, 595 N.E.2d
600 (5th 1992); City of Rockford v. County of Winnebago, 186 Ill. App. 3d 303, 542 N.E.2d 423 (2nd Dist. 1989).
Therefore, the Board will remand this matter to Fairmont City to hold a new siting hearing consistent with this
opinion and the provisions of Section 39.2 of the Act.
This opinion constitutes the Board’s findings of fact and conclusions of law in this matter.
ORDER
The decision by Village of Fairmont City granting siting approval to Waste Management of Illinois, Inc. to
expand the Milam Recycling and Disposal Facility is vacated. This matter is remanded for rehearing before the
Village of Fairmont City. At a minimum the Village of Fairmont City shall:
1.
Proceed as if the application were newly filed pursuant to Section 39.2 of the
Environmental Protection Act (415 ILCS 5/39.2 (1998)) as of the date that the
Village of Fairmont City receives this opinion and order.
2.
Make the application available for public inspection pursuant to Section 39.2(c) of
the Environmental Protection Act (415 ILCS 5/39.2(c) (1998)).
3.
Hold a hearing no sooner than 90 days but no later than 120 days from receipt of
this opinion and order. Such hearing shall be noticed pursuant to Section 39.2(d) of
the Environmental Protection Act (415 ILCS 5/39.2(d) (1998)).
4.
Act within 180 days of the receipt of this opinion and order according to Section 39.2(e) of the
Environmental Protection Act (415 ILCS 5/39.2(e) (1998)).
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above opinion and
order was adopted on the 19th day of October 2000 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
15
