ILLINOIS POLLUTION CONTROL BOARD
November
19,
1987
CITY OF ROCKFORD,
a Municipal Corporation,
Petitioner,
VS.
)
PCB 87—92
WINNEBAGO COUNTY BOARD,
Respondent.
DISSENTING OPINION
(by J.
Anderson):
The majority Opinion of the Pollution Control Board
(PCB)
today finds
that the decision of
the Winnebago County Board
(County)
denying
the application of
the City of Rockford
(City)
for site location suitability approval for
a new regional
pollution control
facility
“was
the result of
a fundamentally
unfair process”
and further
finds that the appropriate remedy of
this unfairness
is
to vacate the decision and to remand the
application for further proceedings and re—deliberation.
(Opinion,
p.
29,
31).
I am
in strong disagreement with the majority’s view that
the pervasive and systemic violations
of the most fundamental
standards
of adjudicatory due process
in this case can
be
“put
right” by
a
remand for hearing and reconsideration
in November
to
the same elected
body which decided
this case
in May
on
the basis
of non—statutory “criteria”
supported by off—record
“facts”
and
ex parte contacts during the midst
of
an inflammatory citizens’
public opinion publicity campaign which virtually promised
political “punishment”
for votes favorable
to the City’s
application.
This case does not involve the kinds of relatively
isolated
instances
of unacceptable error which can fruitfully be addressed
on remand.
I do not believe that the decision—makers
here
are
in
a position to make the process whole again.
While
I appreciate
the Board’s desire
to remand for correction
of procedural
error
in SB172 cases,
anything short
of simple
reversal here,
it seems
to me, will
serve
to exacerbate,
not ameliorate,
the situation.
I should also point out that, had this case been reversed,
the
environmental considerations would
be undertaken by the
Environmental Protection Agency when
it reviews all aspects of
facility design and operation pursuant
to
its permitting
responsibilities.
83—87
I
believe my conclusion
is amply supported
by the recitation
of facts and legal precedent
as contained
in pages
1—21 of the
majority Opinion.
I
am also
in agreement with the majority’s
general statements concerning the troublesome aspects
of
the
S8172 process outlined by the majority Opinion
on pages 29—30
(beginning
with the third complete paragraph on
p.
29
and ending
with
the last complete paragraph on p.
30).
In fashioning
its remand remedy, however,
the majority has
failed
to
take into account
the
fact,
as noted by the Illinois
Supreme Court,
that “‘due process’,
unlike some legal rules,
is
not
a technical conception with
a fixed content unrelated
to
time, place and circumstances”,
and that,
even given the
presumption of
“honesty and integrity” that applies
to actions
of
local governments
in SB172 cases, review of the situation must be
accompanied by a “realistic appraisal
of psychological tendencies
and human weaknesses”.
Scott
v.
Dept..
of Commerce and Community
Affairs,
84
Iii.
2d
42, 416
N.E.
2d 1082,
1087,
1089
(1975)
(as
cited
and discussed
in the majority Opinion at
p.
9).
I
do not believe
that the PCB majority
is being
realistic
here.
*
The majority Opinion correctly notes
that, between the
activities
of Save The Land
(STL)
and the County Board Members,
the entire SB172 adjudicatory decisionmaking process broke
down.
A number of the SB172 cases previously decided by tnis
Board presented troublesome fundamental fairness issues regarding
personal bias and ex parte contacts;
in
no case was
there the
systemic and cumulative breakdown that occurred here.
vjnile the
Board has
a history of giving citizens tne “benefit
of the doubt”
concerning procedural errors which they perhaps unwittingly
commit during the course of 5B172
(and other) proceedings,
I
*
While
it
is hardly my habit
to do
so
in dissenting Opinions,
in
this case,
I feel
it is
important to briefly outline some of
the
experiential bases
I have applied
to my analysis
of
the record
in
this case.
In addition
to my technical
background,
I served as
a
delegate
to the 1969—1970 Constitutional Convention and was a
member of
the Convention’s Committee on Local Government
(see
generally Anderson and Lousin, From Bone Gap to Chicago: A
History of the Local Government Article of the 1970 Illinois
Constitution,
9 John Marshall Journal
of Practice and Procedure
697
(1976)
and
n.
11 at p. 701).
I subsequently served as
Trustee and Vice—Chairman for the College of DuPage,
and as
Commissioner
for the Metropolitan Sanitary District
of Greater
Chicago.
I also served
on
a number
of appointed
local government
committees.
I was initially appointed
to this Board
in 1980,
and
hence nave
reviewed the record and participated
in, often as
principal drafter,
the decision
in each
of the
32 previous SB172
cases deliberated by this Board.
83—88
—3—
believe tnat extension of
this benefit
to STL here
is
unwarranted.
During the course
of
the hearings
at
the County
level
as well
as
at
the PCB level,
STL was represented
by counsel
and gave every appearance of
being conversant with SBI72 case
law,
and unhesitatingly exercized
its procedural
rights
to
participation
in the quasi—judicial SBi72 proceedings.
Since
1981,
the Board and the courts have pointed out the
error and unacceptability
in SB172 proceedings
of ex parte
contacts or,
to put
it bluntly
in the context
of
the judge/jury
analogy used by
the majority Opinion
(p.
20—21):
“jury—
tampering”.
I find
it difficult
to believe
that SrL could have
managed
to inform itself
of
its procedural rights without being
aware of procedural
restrictions.
Yet STL exhibited
a course and
pattern of conduct
intended to influence the County by means
to
which the City could not lawfully reply
in kind:
the signs,
the
buttons
for Board Members,
the “incineration” lunch with a Board
Member,
the refreshment stand,
the injection
into the County
comment record of minutes
of its meeting concerning
the
incineration proposal (ruled out of order
as
a subject matter
at
hearing),
the supplying directly to
the County Board Members
of
information not filed with the County Clerk, the address
to
the
County Board
on May 28.
These efforts,
of course,
culminated
in
the piece
de resistance:
the radio commercials (set out
in tneir
entirety in the majority Opinion at page 12) whose clearly
intended result was
to encourage constituent telephone calls
personally
to the County Board Members reminding
them that
a vote
for the City’s application was
a vote “in fact”
for dead trees,
dead crops, dead fish, and dead children.
I
find STL’s attempt
to excuse this behavior by waiving
the
banner of first amendment rights
to
freedom of expression
(STL
Brief,
p.
73) truly disingenuous.
I daresay that STL would
be
unlikely to make such an assertion
if tne applicant,
rather than
STL,
had carried out such activities.
Citing Waste Management
of Illinois
Inc.
v.
IPCB,
123 Ill.
App.
3d 1075,
463 N.E.
2d 969
(2d Dist.
1984),
the majority
Opinion concludes
(at p.
29—30)
that:
“The
City
has
not
shown
that
the
County Board’s
decision
was
based
merely
on
the
political
climate
of
the
area,
altnough
some County
Board
Members
did
base
their
decisions,
in
part,
on
evidence not
in the record.”
This reliance on Waste Management
is inappropriate,
as
in tnat
case the court found
that the only factor cited
in support
of the
contention
that a biased decisionmaking had occurred was the
fact——which
the court stated was not of
record——that half of that
County Board faced re—election within
2 months of
the decision.
The court accordingly found
that
“petitioner
has not demonstrated
83—89
that the board members decided
on its application
as
a result
of
the public opposition
and without consideration of
the evidence.”
In analyzing
the City’s allegations
of bias
or pre—judgment
of adjudicatory
facts on the part
of the County Board Members,
I
in no way disagree with the majority’s citation of cases standing
for tne proposition that,
without more,
any statements made by
the County Board individually
or collectively against the Baxter
and Mulford site prior
to the filing
of the City’s SB172
application do not per
se
serve
to disqualify them as
decisionmakers.
Here, nowever,
there
is plenty of
“more”.
While STL did not carry out its responsibility
to act
appropriately,
the County Board Members collectively did not
carry out their concurrent responsibilities.
I
agree with
the
majority that Mr. MacKay, Chairman
of the Zoning and Planning
Committee who conducted
the County hearings, did a fine job of
conducting the hearings themselves.
However,
since he was,
as he
put it, only
a “quasi—judge”,
Mr. MacKay nad inherent limitations
to his powers and could not issue an effective order
directing
STL
to cease
its off—record activities,
any more than
he
could so
direct
(as opposed
to advise)
his fellow County Board Members.
Without
the power
to declare
a “mistrial”
to allow the action
to
recommence
from “square one” before a new judge/jury which had
no
previous exposure
to
the action or pre—judgment
as
to
the
outcome,
the hearing officer
in an SB172 case does face
considerable difficulty.
Notwithstanding,
the County Board Members
are chargeable
with knowledge of SB172
case law and of
tneir responsibilities,
no matter how difficult
for elected officials,
to manage any
unavoidable ex parte contacts
as they occur.
Such management
techniques
range from termination of
conversations once
their
direction
is clear,
to placement
of letters
into the County’s
public record,
to
reduction of the contents
of phone calls
to
writing
for placement into the record,
to abstention
from the
vote.
The County did none of
these things.
I must also note, however,
that
I believe that for such
“fixes”
to
be effective,
they must be performed at
or near
the
time of
the contact.
In this case,
pursuant to the PCB majority
remand order,
I do not see how a County Board Member can
be
reasonably expected to reconstruct letters, phone calls,
or
conversations which occurred last May,
or how the City can
effectively rebut
them.
I also fail
to see how the effect of
these contacts,
as well
as
the “facts” emanating
from the STL
radio commercials,
can be effectively purged from the County’s
decisionmaking
system.
These “facts” and opinions nave already
been internalized by the County Board Members, whose
recollection
of them will only
be refreshed by further
repetition at
subsequent hearings
(as explained
later
in greater detail.)
83—90
This brings me
to the other off—record
“facts”
shared by
trie
County Board Members during
their debates (majority Opinion, pp.
15—16,
20),
as well
as the non—statutory
“criteria”
reflected
in
the County’s resolution
e.g.
lack
of
“guarantee”
of design
failure
(majority Opinion,
pp.
6—7).
In
contrast to
the
majority’s view
(Opinion p.
28—29),
it
is my belief that most
County Board Members who had made even
a cursory review
of the
information legitimately before tne County
in this much
publicized proceeding could
not help but have some memory
of what
the actual SB172 criteria were only three months after the vote,
while County Board Members who had based
their decision only
or
largely upon their legislative experience,
the debate
of their
colleagues,
ex parte conversations,
or media exposure would not.
I believe that a “realistic appraisal”
of the comments made
by various County Board Members
at the County’s May 21 and
28
meetings and at the PCB hearings,
as well as the County
Resolution, made
in light of the
17 year history of the City’s
and County’s actions concerning the intended use of
the Baxter
and i4ulford site
as
a landfill, would
lead
“a disinterested
observer
Ltoj conclude that
many
County Board Members
had
in
some measure adjudged the facts
as well
as the law of
the case
in
advance
of hearing
it.”
E
&
E Hauling
Inc.
V.
Pollution Control
Board,
116 Ill. App.
3d
586,
451 N.E.
2d
555,
565
(2nd Dist.
1983).
The PCB majority recognizes
a bias
problem in this
case, and
singles
out for disqualification four
County Board Members,
those
who wore STL buttons
at hearing.
I believe that this response
is
ill—considered and
fails
to address the overall problems
in this
case.
As
to the four excluded for wearing buttons,
I can easily
argue, consistent with the majority’s
logic, that Board Members
Connelly and Barnard should not nave been excluded
for this
reason alone.*
The gist of their
testimony
is
that they picked
up buttons
at
a hearing, put them on, wore them about five
minutes,
talked about
it together, and took them off because they
didn’t want to be seen as expressing
an opinion
(PCB Tr.
60,
68,
204).
(Mr. MacKay also testified that he cautioned against
button wearing by County Board Members.
PCB Tr.
137.)
In effect,
these Board Members,
by relatively quickly
taking
off the buttons,
arguably “cured”
the problem.
Since the County
hearing transcripts do not indicate which County Board Members
were present at which hearings,
it
is
impossible
to determine how
*
Tnere are other bases
for exclusion
of these
individuals which
are more compelling.
However,
I do not believe that discussion
of
the reasons for disqualifying individual County Board Members
is fruitful,
given my belief that nere the problem cannot be
cured
by singling out only some County Board Members
to
shoulder
all the blame.
83—9 1
many decisionmakers witnessed their
actions.
Notwithstanding,
I
think
it
is
fair
to assume that their action had less effect on
tne County’s decisionmaking process than the petition against
the
landfill
signed by two other
Board Members
which was included
in
tne County Record for all
to
see;
the majority opinion does not
disqualify
these Board Members,
who ned been requested by tne
City
to recuse themselves because
the wording
of the petition,
although circulated before the City’s application was filed,
very
closely tracks the language
of criteria
(ii)
and
(iii)
of SB172.
(See Opinion,
p.
Il).
Even
if one were
to agree
(which
1 do not)
that the effect
of
the ex parte contacts of varying degrees
of severity testified
to by
a full seventeen
(17)
of
the twenty—three
(23) members wno
voted against
this application
(see Opinion
at p.
12—13)
can be
cured
at
a subsequent hearing,
I
think that the majority Opinion
is fatally flawed because
it does not (perhaps because
it cannot)
give effective instructions
for the parties to follow on
remand.
Exactly what are the County Board Members, the City
and the
other participants
to do
at
the hearing ordered by the PCB
majority?
The majority opinion gives
no direction on this,
other
than
to say that the “substance”
of all
ex parte contacts
(presumably including the radio ads and signs)
snail
be made part
of the record.
Actually,
I would be hard put
to tell
the participants wnat
to do that would not exacerbate the situation.
The County Board
Members who testified at the PCB hearing have already stated
that
they had no precise memory of
the substance of their
off—record
ex parte phone calls
(except that
callers were overwnelmingly
against
the landfill).
Some have produced some of the letters
they received, but those who discarded them were vague about
content,
again save
for
the fact that tne letters were largely
anti—landfill.
Are County Board Members
to give the names
of
the
persons who called them?
Are the transcript and exnibits
at the
PCB hearing
to be
rehashed?
Is each County Board Member
to
present additional
testimony concerning
ex parte contacts?
ls
each
to testify concerning contacts since the time of the County
decision?
These contacts could have
as great a damaging effect
on the County’s deliberations upon remand
as
the earlier
ones.
Once all this
is aired,
should those
acknowledging
ex parte
contacts recuse themselves?
What
if this constitutes
a majority
of the County Board?
Moreover,
the “substance”
of many of
the ex parte contacts
was the preferability of
a proposed incinerator
over
the proposed
landfill
(Opinion at p.
12—13).
This subject matter
was
repeatedly,
and correctly,
ruled out of order by Mr. MacKay
during the prior County hearings as being beyond the scope
of
SB172.
Is the City now permitted
(required?)
to attempt
to rebut
this information which
the PCB majority has included into
the
record for hearing?
Is tne City
to do the same
(whatever
that
Q~CV)
is) with every other
irrelevant “fact”
which might have swayed
the County?
Finally, what
if the record developed on
remand shows
that
the County has again reacned
a legislative decision?
By the
majority’s
logic, one remand could
be followed
by another and
another
for correction
of the same error,
creating
a closed loop
in contravention of S8l72’s intent
that the applicant have
a
speedy final decision on its application from its local
government.
I do not think
that the drafters
of SB172,
or
the courts
who
have heretofore interpreted
it,
could have contemplated
the
dilemma which
this case has posed.
I agree with
the majority
(Opinion p. 7,30)
that current case
law prohibits
the Board from
exercising
what
I would find the most preferable option
in
a case
such
as
this,
which would be
to have the Board review the record
de novo
to determine whether the City had proven
by a
preponderance of
the evidence that the criteria of SB172 had been
satisfied.
While
the decision would not be made
by local
government,
a decision would be reached on the record by an
unbiased decisionmaker.
I do not find unacceptable, under the circumstances here,
the only practical option available
to
the Board:
reversal.
The
majority Opinion
(p.
30)
stated:
The
Board
also
nas
the
option
to
conclude
that
Winnebago
County
cannot
render
a
fundamentally
fair
decision
and
totally
reverse
the
County,
thus
allowing
the
application
to
proceed
to
the
Illinois
Environmental
Protection
Agency
for
decision
on
permits.
This
option
would
be
a
severe
penalty
for
the opponents
of
the landfill
who
contributed greatly
to
the unfairness
of
the
process.
The logic
of that last sentence eludes me.
Given the majority’s
acknowledgment that tne unfairness
in this proceeding stems
solely from the actions
of STL and the County,
why
is
it fair
to
“penalize”
the applicant with
an
impossible remand hearing before
the County?
It
is hard enough
in the first instance for the County Board
Members to adapt
to the constraints
imposed on them by the quasi—
judicial S8l72 process.
That, however,
is required by statute;
this remand
is not so required.
The PCB majority is now asking
these elected officials
to dispassionately
reconsider
their
first
decision because
of procedural error, no matter whether
any
reversal
of the decision would fly in the face of
constituents’
expressed wishes.
Any tendency to
“stick to one’s guns”
can only
be strengtnened by the personal embarrassment and resentment
83—93
—d—
which many must have felt as
a result
of
the microscopic scrutiny
of their
actions
in this unaccustomed legalistic, quasi—judicial
context.
I
do not believe the PCE majority is taking
a real world
view
of tne practical effects
of their remand.
In essence, and
without
in any manner
impugning
the honesty
and integrity of
the
County Board Members,
I
believe that the PCB majority
is asking
the County Board
to cure a problem that
it simply cannot
reasonably
be
expected to cure.
I
suspect
that the only change
in the County’s action on remand will
be that
the Board Members
will
be super—cautious
about engaging
in debate and about how
they articulate
a reason for
a vote
against
(or for)
the
landfill.
While
the written record
of the decisionmaking process
might thus
be “sanitized”,
I doubt
that the process
itself will
be.
I am convinced
that the Board will continue to see cases
evidencing
the strain caused by SB172’s statutory and court
ordered restrictions.
There
are no easy solutions
to this
problem.
However,
local government officials
faced with SBI72
applications might
well wish
to become personally familiar with
S3l72 case
law so that they can serve
their
constituents by not
becoming
embroiled
in lengthy, time—consuming and expensive
appeals because
of failure
to act as
“quasi—judges”.
Again, and
in conclusion,
it
is my firm belief that
the only
available,
realistic,
and effective remedy for the prejudice
to
and breakdown
of the SB172 decisionmaking process demonstrated
here
is reversal
of thG County’s decision.
For all
of
the
reasons expressed herein,
I dissent from the majority Opinion and
Order.
,
/
/
~
~
A-’
~oan
G. Anderson
/
I, Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby certify that the above Dissenting Opinion was
submitted on the
V’,
day of
e.~t.~ii~C..At.-’
,
1987.
4~,in.
,L~’
Dorothy M.
Gunn,
Clerk
Illinois Pollution Control Board
83—94