ILLINOIS POLLUTION CONTROL BOARD
October
1,
1987
A.RF.
LANDFILL,
INC.,
Petitioner,
v.
)
PCB 87—51
LAKE COUNTY,
Respondent.
CONCURRING
OPINION
(by
B.
Forcade):
I support the outcome
that
the county board decision be
affirmed but disagree with some of the rationale and findings
expressed
in the Opinion filed with the Clerk
of the Board on
October
1,
1987.
FUNDAMENTAL FAIRNESS
I agree
that
the proceeding below was fundamentally fair
and
support the rationale on pages 1—6
of the October
1 Opinion.
However,
I am particularly concerned with
the current
trend
in
Section
39.2 proceedings:
the landfill
is tried before
the
county board
and the county board members
are tried before
this
Board.
I certainly agree that issues
of
ex parte contacts,
conflicts of
interest and
the like are appropriate
issues for
presentation to this Board
as
a showing
that the proceeding below
was not fundamentally fair.
However,
I also believe
that
the
county board proceeding
is entitled
to
a strong presumption of
propriety that must
be overcome before there
can
be
a “fishing
expedition”
into the personal lives
and mental processes
of
the
county board members.
The interrogatories
submitted
to each county board member
by
A.R.F.
asked identification
of each and every communication with
any person regarding the A.R.F.
landfill;
asked
for disclosure
of
any financial
interest the county board members had
in ?~aste
Management or property near
the A.R.F.
facility;
asked
for their
attendance
record at the A.R.F.
hearings;
asked
for their
participation
in negotiations
and voting record relating
to the
Heartland property annexation;
asked
for financial disclosure
regarding interests
in other
landfills
or
incinerators
in any
jurisdiction;
asked about financial benefits received from Waste
Management;
asked
if
the county board members had ever made
public statements
about
the existing A.R.F.
landfill;
asked
whether
the county board member
had read the entire transcript
(if not, what parts were not read);
and asked whether
the county
board member would have voted
against
the approval regardless
of
82—85
the evidence (A.R.F.’s
Interrogatories
to Lake County Board
Members, May
22,
1987).
It would appear that some portion of
this
inquiry has both
relevancy and materiality.
But the
threshold
issue
of
whether
the adjudicatory decisionmaker can be
queried
at
all,
absent some forceful prima
facie showing
of
impropriety,
remains unanswered.
This
is
an especially difficult
question where
the adjudicatory decision
is rendered not
by
a
trial
court
judge,
but by
an
institutional body.
The
courts have struggled with this issue
since
the early
1930’s.
The basic framework
for how institutional adjudicatory
decisionmakers must
“consider
the evidence”
and what
inquiries
can
be made into that process, was
laid down by the United States
Supreme Court
in the four Morgan cases
and their
progency (Morgan
v.
U.S.,
298 U.S.
468
(1936)
Morgan
I;
Morgan
v.
U.S.,
304 U.S.
1
(1938)
Morgan
II;
U.S.
v. Morgan,
307 U.S.
183
(1939)
Morgan
III;
and U.S.
v.
Morgan,
313 U.S.
409
(1941)
Morgan
IV.
In
1936,
the U.S.
Supreme Court held that
“the one who
decides must hear.”
Morgan
I.
Subsequently,
the district
court allowed
the Secretary of Agriculture
to be examined
on
whether he had heard
the
case
(read
the
record).
On subsequent
appeal,
the Supreme Court reversed itself with
Mr. Chief Justice
Frankfurter stating
in the Opinion:
But
the
short
of
the
business
is
that
the
Secretary
should never
have
been
subjected
to
this
examination.
The
proceeding
before
the
Secretary
“has
a
quality
resembling
that
of
a
judicial
proceeding.”
Morgan
v.
United
States,
298
U.S.
468,
480.
Such
an
exami-
nation
of
a
judge
would
be
destructive
of
judicial
responsibility.
We
have
explicitly
held
in
this
very
litigation
that
“it was not
the function
of
the court
to probe
the mental
processes
of
the
Secretary.”
304
U.S.
1,
18.
Just
as
a
judge
cannot
be
subjected
to
such
a
scrutiny,
compare
Fayerweather
V.
Ritch,
195
U.S.
276,
306—7,
so
the
integrity
of
the administrative
process
must
be
equally
respected.
See Chicago,
B.&Q.
Ry.
Co.
v. Bab-
cock,
204,
U.S.
585,
593.
It
will
bear
repeating
that
although
the
administrative
process
has
had
a
different
development
and
pursues
somewhat
different ways
from those
of
courts,
they
are
to
be
deemed
collaborative
instrumentalities
of
justice
and
the
appro-
priate
independence
of
each
should
be
re-
spected
by
the
other.
United
States
v.
Morgan,
307 U.S.
183,
191.
United
States
v.
Morgan,
313
U.S.
409
(1941)
Morgan
IV)
82—86
—3—
The
four Moraan cases, and their progeny,
lay
the groundwork
for
the questions now plaguing the Board.
It seems clear that
institutional decisionmakers must consider
the evidence, but that
you can only ask certain questions of the decisionmaker and then
only
if
you
meet
some
burden
or
prima facie
showing that the
decisioninaking
process
was
flawed.
What
showing
must
be made and
what questions you can subsequently ask
is
a very murky area
of
the law.
In National Nutritional Foods
v.
F.D.A., 491 F.2d 1141
(2nd Cit.,
1974),
no examination
of
the Secretary was allowed
even though
it would have been physically
impossible for the
Secretary to read
the hundreds
of tnousands of pages
of
record
involved
in the decisions
the Secretary made
in the first
13 days
after
he
took office.
See also Libis
v.
Board of
Zonina Appeals
of
Akron, 292 N.E.2d 642
(Ohio Appellate,
1972).
I have reviewed
a substantial body of literature
(and much
of
the
case
law
cited
therein)
in
an
attempt
to
determine
what
questions
may
be
asked
of
county
board
decisionmakers
in
a
Section
39.2
proceeding
and
what,
if
any,
preliminary
showing
must
be
made
prior
to
asking
those
questions.
The
law
is,
at
best,
murky.
Nonetheless,
if Chief Justice Frankfurters
rationale
in Morgan
IV holds
true,
I
find
it difficult
to believe
that A.R.F.’s May 22,
1987,
Interrogatories would have been
allowed
if posed
to
a trial court
judge
in Illinois.
CRITERION NO.
1
I support
the rationale and finding
of
the
October
1 Opinion
(as
expressed
on
pages
7—10)
that
the
county
decision
on
this
criterion must
be affirmed.
CRITERION NO.
2
I support
the finding
that
the county board decision on
Criterion
No.
2
be
affirmed
and
the
rationale
as
stated
at
pages
10—20.
I
did,
however,
believe
additional
reasons
supported
the
county
board’s
determination.
I
was
particularly
concerned
by
the proximity of
the proposed facility
to drinking water
supplies.
The record discloses
that there
is a drinking water
supply
within
250
feet
of
a proposed cell
of the facility
1.
K. Davis,
Administrative Law Treatise,
Section 11.02—11.04
2 Am Jur.2d, Administrative Law,
Section
439
F.
Cooper,
State
Administrative
Law,
Chapter
13,
Section
3
18
A.L.R.2d,
606—629
(including
Later
Case
Service)
Stein,
Mitchell,
Mezines,
Administrative
Law,
Chapter
38
50
Washington
Law
Review,
749
(1978)
30 Administrative Law Review,
237
82—87
—~
—
(January
28,
1967,
transcript,
p.
83),
there
are
at
least
seven
wells
within
500
feet
of
the facility
(January 20,
1987,
transcript,
p.
44)
and there
are about
133
wells
within
about
3
miles
of the facility
(February
4,
1987,
transcript,
p.
100).
I
believe
the county board
could
have
legitimately concluded that
the density of drinking wells
in this area was so high that the
“location” was inappropriate
for
a landfill regardless
of how
carefully that landfill might
be “designed”
or “proposed
to be
operated.”
This
issue
takes on added
importance when the
possibility
of
sand
lenses
is
considered
and
the
post—closure
leachate migration after
the leachate collection system
is turned
off.
~dditiona1ly,
the October
1,
1967,
Opinion misses
an issue
I
find quite persuasive.
The county board made
a particular
finding that
found evidence against
the facility credible and
questioned
the credibility of A.R.F.’s witnesses’
testimony on
Criterion No.
2 (Regional
Pollution Control Recommendation,
p.
13).
I do not believe this Board can lightly dismiss or
disregard findings on credibility since
we
do not view the actual
testimony.
CRITERION NO.
3
I
disagree
with
the
finding
and
rationale
expressed
in
the
Opinion
filed October
1,
1987,
as
it
pertains
to
Criterion
No.
3.
I would affirm the county board’s decision that A.R.F.
has
failed
to
show
compliance
with
Criterion
No.
3.
In haste Management
of Illinois,
Inc.,
v.
Lake County Board
and the Village of Antioch,
(PCB 82—119, December
30,
1982),
the
Board held
that the fact that
a site
is
an extension of
an
existing
system
or
is
proposed
to
be
located
next
to
a
previously
operated site cannot be used
to demonstrate
the compatibility of
the site.
In
that
case,
the Board
cited
two reasons
for
rejecting this type of demonstration.
First, Sections 39.2 and
3(x)(2)
of
the Act clearly require
that expansions
of existing
RPCF be subject
to the same review process as that required
for
totally new facilities.
Second, once
a pre—existing landfill
is
closed,
the character
of the area
becomes one of open space
and
the
residents
may
have
a
reasonable
expectation
that
it
will
be
so
maintained.
The
Board
concluded
that
it
would
“not allow
the
potential
of damage
to
the
surrounding
community
due
to
a
proposed expansion
to
be negated by
a
‘boot—strapping’ argument
that
the existing landfill has already caused real
or perceived
damage
to
that
same
area.”
(Id.
p.
12).
This
decision
was
explicitly upheld
on review by the Second District Appellate
Court
(No.
83—166,
May
8,
1984):
We agree with the PCB that
the clear
intent of
the statute
is
to require
the
local government
units
to
consider
a
proposed
facility
expari—
82—88
—5—
sion
as
a
new and separate
regional pollution
control
facility.
Consistent with
this legis-
lative
intent,
therefore,
petitioner
should
not
be
able
to
establish
compatibility
based
upon
a
pre—existing
facility.
The
reasoning
and
law
are
equally
applicable
here.
With
one
exception,
all
of the evidence supporting A.R.F. ‘s
claim of
minimizing incompatibility presumed and included the presence
of
the existing landfill
in evaluating
the impact of
the proposed
expansion.
That
exception
is
Mr.
Whitney’s
statement
that
the
proposed
expansion
would
have
minimal
impact
even
if
the existing
facility
were
not
there
(January
30
transcript,
p.
85).
Although
Mr. Whitney’s evaluation
of impact with the existing facility was
formulated
from
January
7
until
January
29.
His
opinion
on
the
impact,
absent
the
existing
facility,
was
formulated
“briefly
after
Mr.
Kissel
asked
the
question”
(January
30,
transcript,
p.
89).
This
briefly
formed
opinion
seems
to
be
at
odds
with
Mr.
Whitney’s
prior
statements
that
the
existing
facility
has
an
impact on surrounding
land values and that property values would
increase
if the existing facility
closed
(January
29, transcript,
pp.
106—107).
This conflict
would
support
the
county
board’s
decision that Mr Whitney’s testimony was not credible
(Regional
Pollution Control Recommendation,
p.
14).
Perhaps
the most troublesome aspect
of the proceeding
on
Criterion No.
3
is
that all evidence supporting minimizing
compatibility took the location as
a given, and evaluated,
design
and operational
factors
that might minimize
the impact.
“Based
upon the configuration of
the property with the setbacks,
the
berming
and the landscaping,
it’s my opinion
that
impact
on these
properties
will be minimized”
(R. January 29,
1987,
p.
104).
Neither
the construction
of the earthen berm nor any other
construction, design or operational plan are evidence
that the
site
is located
so
as
to minimize incompatibility.
These efforts
to mitigate the impact of the facility take the location of the
facility
as
a given.
They are correctly considered
under
Criterion No.
2 and Criterion No.
5.
However, Criterion No.
3,
if
it
is
to
be given
a meaning which
is distinct from Criterion
No.
2
or Criterion No.
5,
must be interpreted as also requiring
a
review
of
the location
of the site
in terms
of the character
of
the surrounding
area.
Such review should
be
independent
of any
measures which may
be taken
to mitigate
an adverse
impact on
the
area.
This
is not
to say that construction, design and
operational features are irrelevant.
They may certainly
be
evidence
of
the character
of the site
itself.
However,
they do
not negate
the need
to
independently consider the character
of
the area in which
the site
is
to be located.
In summary,
I would uphold the county board
on Criterion No.
3.
82—89
~0~
CRITERION
NO.
4
I also cannot support
the October
1,
1987,
Opinion
finding
on
Criterion
No.
4.
That
Opinion
and
prior
holdings
by
a
majority
of
the
Board
have
reduced
this
criterion
to
a
meaningless
exercise
in paper
shuffling.
Under Section
39.2(a)(4)
of the Act,
site location suitability may
be approved
only
if:
The
facility
is
located
outside
the
boundary
of
the
100—year
flood
plain
as
determined
by
the
Illinois Department
of
Transportation,
or
the
site
is
flood—proofed
to
meet
the
standards
and
requirements
of
the
Illinois
Department
of
Transportation
and
is
approved
by that Department.
My interpretation
of this language
is that Criterion No.
4
requires two factors:
1.
A determination
by Illinois Department
of
Transportation
(“IDOT”) that the facility
is located
outside
the boundary of
a 100—
year
flood
plain
or
a determination
that
the
facility
is
flood—proofed
to
meet
IDOT standards and approved
by
IDOT;
and
2.
Competent
evidence
on
IDOT’s
determina-
tion
must
be
presented
to
the
County
board.
IDOT’s “determination”
or
“approval”
comes
in
a standard
form letter which states
in relevant part:
Inasmuch
as the site
is located within
a rural
area
and
on
a
stream with
a drainage
area
of
less
than
ten
square
miles,
an
Illinois
Department
of
Transportation,
Division
of
Water
Resources
permit
will
not
be
required
for
the landfill.
With
regard
to
Section
39.2
of
the
Illinois
Environmental
Protection
Act,
this
letter
constitutes
Illinois
Department
of
Transportation
approval
upon
your
receipt
of
all
appropriate
Illinois
Environmental
Protection Agency approvals.
First,
it
is clear
from the language of
the form letter
that
IDOT
is specifically not making determination
on the 100—year
flood plain
and specifically not making
a determination on flood—
82—90
—7—
proofing.
Second,
prior
cases make
it clear
that IDOT sends
this
form letter for all
sites,
even where
there
is a stream running
through
tne site and routine flooding
is acknowledged.
Board
of
Trustees of Casner Township,
et al.
v.
County of Jefferson,
et
al., PCB 84—175 and
176, April
4,
1985.
In
fact,
IDOT sends this
form letter
to citizens who write objecting
to the landfill,
Casner Township,
supra.
The October
1,
1987, Opinion continues
a line
of precedent
holding that facility applicants must get a meaningless form
letter from IDOT
to
satisfy Criterion
No.
4.
I cannot agree with
that position.
It
is
clear
from the record that most of
the proposed
facility
is not only
in
a flood plain, but has recently
flooded.
Further, no
flood proofing plans were submitted
to
IDOT.
Therefore,
there
is no credible evidence,
to me,
that IDOT
has made
the necessary determination and
I would uphold
the
county board.
The October
1,
1987, Opinion
continues
the facade
that
county boards can consider the actual fact finding on flood plain
issues under Criterion
No.
2.
Yet the October
1 Opinion contains
no reference
to flooding
issues
in
the Criterion No.
2
discussion.
I am personally unable
to write Criterion No.
4 out
of
the Illinois Environmental Protection Act by administrative
fiat.
CRITERION
NOS.
5
&
6
I support the findings and rationale
on Criterion No.
5 and
No.
6 as expressed
in the October
1,
1987, Opinion at pages 27—
31.
Bil1~S. TE’orcade
Member of
the Board
I,
Dorothy M.
Gunn, Clerk of
the Illinois Pollution Control
Board,
hereby certif,~’ that
the above ~onçurring
Opinion was
submitted
on the
~
day of
_____________________,
1987.
72~.
~
Dorothy M. Gunn,
Clerk
Illinois Pollution Control Board
82—9 1