ILLINOIS £~OLLUTIONCONTROL BOARD
July
16,
1987
JOHN ASH,
SR.,
Petitioner,
v.
)
PCB 87-29
IROQUOIS COUNTY BOARD,
Respondent.
MR. THOMAS
E.
MCCLURE,
ESG., APPEARED ON BEHALF OF PETITIONER.
MR. TONY BRASEL,
ESG., APPEARED ON BEHALF OF RESPONDENT.
OPINION
OF THE BOARD
(by Bill Forcade):
This matter comes before the Board upon an appeal
filed by
John
Ash,
Sr.
(“Ash”)
on March 9,
1987, pursuant
to Section
40.1(b)
of
the Environmental Protection Act
(“Act”)
(Ill.
Rev.
Stat.
ch.
lll1,~par.
1040.1(b)).
Ash appeals the decision of the
Iroquois County Board
(“County”)
denying
site location
suitability approval
for
a new regional pollution control
facility.
A hearing was held on May 12,
1987.
Briefs were
filed
by the County on June
1,
1987,
and by Ash on June
2,
1987.
The
parties each filed reply briefs
on June
9,
1987.
On June
15,
1987,
Ash waived
the deadline for decision
in this case
to July
16,
1987.
For
reasons more fully described
below,
the Board
finds
that
in certain respects procedures employed by the County lacked
fundamental
fairness.
The Board therefore remands
this
proceeding
to the County.
HISTORY
Ash published
legal notice
on July
28,
1986,
of his
intention to petition
the County for siting approval
for
a
regional pollution control facility.
Petitioner’s Exhibit
1
Additionally Ash sent,
by certified mail,
a written letter of his
request
for site approval
to adjacent land owners of
the proposed
site and the Illinois legislators whose districts encompass the
area
in question.
P.
Ex.
3,
27.
‘Hereinafter,
Petitioner’s
exhibits
admitted
by
the
County
will
be referred
to
as
“P.
Ex.
79.68
—2—
Ash subsequently filed
his request
for
siting approval with
the County on August 11,
1986.
Nine hearings on Ash’s
application were conducted
by the County’s Regional Pollution
Control Committee (“Committee”) between November
18 and December
3,
1986.
The Committee presented
a resolution
to the County for
the lat~er’sconsideration on
February
3,
1987.
County record,
page
65
.
The document stated
the County’s resolve
to deny the
siting approval sought by Ash,
for
a number of specified
reasons.
The County approved
the
resolution by
a vote of 19-0
on
the same date.
Cty.
R.
at
78.
BACKGROUND
Under Section 39.2(a)
of the Act,
local authorities
are
to
consider six criteria when reviewing an application for site
suitability approval
for
a new regional pollution control
facility which will
not accept hazardous waste.
The
six criteria
are:
1.
the
facility
is necessary
to
accommodate
the
waste
needs
of
the
area
it
is
in-
tended
to
serve;
2.
the
facility
is
so
designed,
located and
proposed
to
be
operated
that
the public
health,
safety
and
welfare
will
be
protected;
3.
the facility
is located
so as
to minimize
incompatibility with the character of the
surrounding
area
and
to
minimize
the
effect
on
the
value
of
the
surrounding
property;
4.
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
floodproofed
to
meet
the
standards
and
requirements
of
the
Illinois
Department
of Transportation
and
is approved
by that
Department;
5.
the
plan
of
operations
for
the
facility
is designed to minimize the danger
to the
surrounding
area
from
fire,
spills,
or
other operational
accidents;
and
2References
to
the pages
of
the
record compiled
by the County
below will hereinafter
be
referred
to as
“Cty.
R.
at
___“.
79-69
—3—
6.
the
traffic
patterns
to
or
from
the
facility
are
so
designed
as
to
minimize
the impact on existing trafficflows.
Section 40.1 of
the Act charges the Board with reviewing
the
decision of the local authorities.
Specifically, the Board
is
mandated
to determine whether
the findings made below regarding
the six criteria are against the manifest weight of
the evidence,
and whether
the procedures used
there were fundamentally fair.
Also
in these cases,
the Board must consider the facts
pertaining
to the question of whether the
notice requirements of
Section 39.2(b)
have been complied with.
The County argues that
the proceedings which were conducted before
it below should be
vacated, reasoning that due
to certain alleged mistakes made by
Ash
in the process
of attempting
to meet the requirements of
Section 39.2(b), the application was never properly before th~
County.
June
1,
1987,
Brief of Iroquois County Board, page
8.
As these issues
are jurisdictional,
they must be addressed before
the
issues of the six criteria and
fundamental fairness.
It
is
to these jurisdictional matters that the Board now turns.
JURISDICTIONAL ISSUES
Illinois appellate courts have consistently construed the
notice provisions
of Section 39.2 of
the Act
to be jurisdictional
prerequisites which must
be followed
in order
to vest
a county
board with the power
to hear
a landfill proposal.
This view was
first expressed
by the Second District Court
in The Kane County
Defenders,
et
a?.
v. The Pollution Control Board,
et a?.,
139
Ill. App.
3d
588,
487 N.E.
2d 743
(2nd Dist.
1985).
That court
found
that the failure
of the applicant there
to comply with
the
notice provisions
of Section 39.2(b)
deprived the county board
of
jurisdiction to rule on
the
landfill application before
it and
rendered its hearing invalid.
139
Ill. App.
3d
at
593.
See also
Concerned Boone Citizens,
Inc., et al.,
v. M.I.G.
Investments,
Inc.,
144 Ill. App.
3d 334
(2nd Dist.
1986).
In landfill siting
appeals the Board must determine whether or not jurisdiction was
properly vested
in
the county board
below,
for
it is only when
that question
is answered affirmatively that the Board itself has
jurisdiction
in
the matter.
Specifically,
the County opines that
in three aspects Ash
failed
to comply with the requirements of
Section 39.2(b)
of
the
Act,
and
that because of such
failure jurisdiction to hear
the
proposal was never vested
in the County.
Section 39.2(b)
provides that:
3Hereinafter referred
to
as
“County Brief”.
79.7°
—4—
b.
No later
than
14 days prior
to
a
request
for
location approval
the applicant shall
cause
written
notice
of
such
request
to
be
served
either
in
person
or
by regis-
tered mail,
return receipt requested,
on
the
owners
of
all
property
within
the
subject
area
not
solely
owned
by
the
applicant,
and
on
the
owners
of all pro-
perty
within
250
feet
in
each direction
of
the
lot line
of
the subject property,
said
owners
being
such
persons
or
en-
tities
which
appear
from
the
authentic
tax
records
of
the County
in which
such
facility
is
to
be located; provided,
that
the
number
of
all
feet
occupied
by
all
public
roads,
streets,
alleys
and
other
public
ways
shall
be
excluded
in com-
puting
the
250
feet
requirements;
pro-
vided
further,
that
in
no
event
shall
this
requirement
exceed
400
feet,
in-
cluding
public
streets,
alleys
and
other
public
ways.
Such written
notice
shall
also
be
served
upon members of
the General Assembly from
the
legislative
district
in
which
the
proposed facility
is located and shall be
published
in
a
newspaper
of
general
circulation
published
in
the
county
in
which
the
site
is
located.
Such
notice
shall
state
the
name
and address of
the
applicant,
the
location
of
the
proposed
site,
the nature and size of the develop-
ment,
the
nature
of
the
activity pro-
posed,
the probable life of
the proposed
activity,
the
date when
the
request
for
site
approval
will
be
submitted
to
the
county
board,
and
a
description
of
the
right
of
persons
to
comment
on
such
request as hereafter provided.
Description of Site Location
The first aspect
in which the County believes Ash failed
to
comply with Section 39.2(b)
involves Petitioner’s description of
the location of
the site
in question.
The
County argues
that the
letter specifying Ash’s intent
to file
a landfill siting
application, which he sent
to neighboring property owners and
legislators, provided an “imprecise” description of the location
of the site.
County Brief,
p.
9.
The site description contained
in the letter
reads
in full as follows:
79-7 1
—5—
The
site
is
located
four
(4)
miles
NE
of
Crescent
City,
one
(1)
mile
east
of
State
Route
49,
near the center of Iroquois
County,
twenty
(20)
miles
south
of
Kankakee,
ten
(10)
miles N~of Watseka.
It consists of
100
acres
west
of
the
County road
in the West
1/2 of Sec.
16,
T27N-l3W,
Iroquois
Township,
Iroquois
County.
The County contends that that “general” description
is not
as precise
as
the description of
the site provided
in the actual
application
filed by Ash with the County.
The latter description
appears
in full as follows:
That part
of
N1-/2 of
the
~
of
the S~/4West
of
County
highway
#35
in
Sec.
16,
T27N—R13W,
40
acres more or
less.
The
SW~-/2 of
the
N~-/4
of
Sec.
16, T27N—Rl3W best
of County road
#35 except a strip
33 feet wide
of
even
width
north
to
south
(1
acre)
on
the
west side——total
tract
60
acres, more or less.
Located
in
Iroquois Township,
Iroquois County,
Illinois,
four
(4)
miles
NE of Crescent City,
near
the
center
of
Iroquois
County,
about
a
half
mile
west
of
where
Spring
Creek
enters
the Iroquois River.
The Board acknowledges that
the site description contained
in the letter
to adjoining landowners and legislators
is stated
in
a slightly more general
form than
is the description stated
in
the application.
The only real difference between the two
is
that
the latter
describes
in extreme detail where,
in
the area
comprising that portion of Section 16 west of county road
35,
the
100 acre
site
is situated.
However,
the Board cannot find that
this distinction makes
the letter’s description
in any way
deficient when evaluated according
to
the requirements of Section
39.2(b).
Section 39.2(b)
requires that the notice sent to adjoining
landowners
and legislators
state “the location of the proposed
site”.
An exact legal description of
a proposed site is
therefore not explicitly required by the Act,
and the broad
sort
of language used
to
specify the requirement
would seem to
indicate that
a general description of the site location
is
sufficient.
In the case at bar,
the
intent
of Section 39.2 was
met because through
the information provided
in the letter
an
interested person could certainly determine,
with considerable
accuracy,
the location of
the proposed site.
79-72
—6—
Under
the
township and
range system,
land has been
subdivided down
to the level of “sections”,
each consisting of
640
acres.
From the map provided
in the County record
(see Cty.
R.
at 5),
it
is clear that the area west of county road 35 within
Section
16 constitutes less than half
of the total area of the
section (therefore
less than
320 acres),
and probably
approximates
an area of something closer
to
a third of
a
section.
Thus, as
a practical matter,
the location of the
proposed 100 acre site is described by the
letter
as being
somewhere within an area that is certainly less than 300 acres
in
size.
The Board believes that this description sufficiently
describes the location of the site.
The Board has previously held that “a defect in
the content
of the notice will only be fatal where that error
is substantial
and material”.
Rick Moore
v. Wayne County Board,
PCB 86-197,
February
19, 1987.
The Board cannot label the description
provided
by Ash in
the letter
as even being
in error;
at most,
it
only lacked
the additional specificity provided by the
description
found
in
the application.
In contrast, a scenario
portraying defective notice occurred
in the Moore case.
There,
the description of the site location provided
by the applicant
in
the notice of application sent
to adjoining landowners and
published in the local newspaper stated that the property was
in
a different township than was
in fact the case.
The notice gave
“Township
2 South”
as the general location, while
in reality the
property was situated
in Township
1 South.
The error placed the
noticed
site location at least
six miles
north of the
actual
site.
PCB 86-197,
p.
3.
The error
in the description provided
in Moore was
in no way comparable
to
the situation of the instant
matter.
Certified versus Registered Mail
The County additionally argues that Ash failed
to comply
with the requirements of
Section 39.2(b)
because the notices
he
sent to adjoining
landowners
of his intent
to file a landfill
application were sent by “certified”, rather than “registered”,
mail.
Section 39.2(b)
states that notices
to adjoining
landowners
are to be
served “either
in person or by registered
mail,
return receipt requested”.
Ash served
the notices by
certified mail,
return receipt requested.
Cty.
R.
at
39.
The
County contends that the two types
of mail service are not
synonymous,
and emphasizes
this point by noting two distinc-
tions.
Registered mail
is apparently stamped by the
Post Office
over
the envelope flap so that
it cannot be opened, while
certified mail
is not.
Also,
registered mail
is said
to be kept
in a special pouch
by the Post Office
and
an employee must sign
a
form every time
the pouch
is opened;
certified mail
is mixed with
first and lower classes of mail.
County
Brief,
p.10.
79-73
—7—
Ash insists that
the
two types of service are substantially
similar, with the only difference being that registered mail may
be insured while certified mail may
riot.
Cty.
R.
at 39.
He
asserts that the Board should not “strictly”
construe
Section
39.2(b)
as excluding the
use
of certified mail,
arguing that the
Legislature could not have intended this result since
a notice
has no monetary value
in and
of itself and
is not something which
a sender would elect
to insure.
Cty.
R. at 39—40.
Rather, Ash
contends that the “true
intention”
of the Legislature
in enacting
the notice provision of
Section 39.2(b) was
to implement
a system
whereby there would
be some record
of
the notice
to owners and
legislators having been both sent and received.
The Board believes that Ash has expressed the most logical
analysis of the legislative intent behind the notice requirement
of Section 39.2(b).
The Board
can ascertain
no substantive
difference
in
the functions provided by registered
and certified
mail, save that postal
insurance may be purchased
to cover
items
sent via the former method.
The letters sent by Ash to adjoining
landowners and
legislators
in fulfillment of the Section 39.2(b)
requirements are not items of monetary value,
and therefore are
not parcels for which
registered mail alone will suffice.
More-
over,
the Board notes that no hardship resulted to any person as
a result of Petitioner’s use of certified mail, return receipt
requested.
This method still provided
a permanent record of the
sending and receipt of
the notices.
P.
Ex.
3.
Presumably
notices were received in a timely fashion by all necessary
landowners and legislators, for
it has not been alleged
that Ash
failed
to notify
any necessary person(s).
Additionally, Illinois
appellate courts have found,
in various
factual settings, that
the form of mailing notice
is not decisive where certified mail
will serve the pu~rposeof registered mail.
The People
ex
rel.
Gail Head v.
The Board of Education of Thornton Fractional
Township South High School District No.
215,
95 Ill.
App.
3d
78,
81—82
(1st Dist.
1981); Olin Corporation
v. William M. Bowling,
95
Ill. App.
3d
1113,
1116-1117
(5th Dist.
1981);
Norman Bultman
v.
Melvin Bishop,
120 Ill. App.
3d
138,
143—144
(5th Dist. 1984);
Illini Hospital
v.
George
P. Bates,
135 Ill. App.
3d
732,
734-735
(3rd Dist.
1985).
For these reasons,
the Board
finds that Petitioner’s use of
certified mail,
return receipt requested, complied with the
service requirements of Section 39.2(b).
Timeframe for Publication of Notice
The final jurisdictional
issue raised
by the County involves
the number of days which transpired between
the date
on which
notice was published
and the date
the application was filed.
Section 39.2(b)
requires that written notice of
inten.t to file
a
request
for site
location approval be published no later
than
14
days prior
to the date
on which
the request
is actually filed.
79-74
—8—
Kane County Defenders,
Inc.
v.
Pollution Control Board,
139 Ill.
App. 3d
588,
487 N.E.
2d 743 (2nd Dist.
1985).
Ash had newspaper
notice published on July
28,
1986.
He filed
his application with
the County on August 11, 1986.
The County contends that according
to the provisions of Ill.
Rev.
Stat.
1985,
ch.
100,
par.
6,
Ash
failed
by
one
day
to
comply
with
the
14
day
requirement
of
Section
39.2(b).
Paragraph
6
of
Chapter
100
reads
in
full
as
follows:
6.
Computation
of
time
In
computing
the
time
for
which
any
notice
is
to
be
given,
whether
required
by
law,
order
of
court
or
contract,
the
first
day
shall
be
excluded
and
the
last
included,
unless
the
last
is
Sunday,
and
then it also shall
be excluded.
Ash claims that he has complied with the
14 day provision.
He
applies
what
he
terms the “usual” method of counting, which
consists
of
excluding
the
date
of publication and counting
the
date
of
filing,
and says that because the application was filed
on
the
fourteenth
day
after
publication,
Section
39.2(b)
has
been
complied
with.
Reply
Brief
of
Petitioner, June
9,
1987,
page
11.
The
Board
concludes
that Ash has complied with
the
14
day
requirement.
Ill.
Rev.
Stat.l985, ch.
100, par.
6
specifies
that
the
“first day”,
or
in
this instance the date
of publication,
must be excluded (not counted),
while the “last” day,
or
in this
case the date of
filing
of the application, must
be included
(counted), unless that day
is
a Sunday.
Applying these direct-
ives to the case
at bar, the Board finds
that Ash filed
his
application on the fourteenth day after publication.
This meets
the requirements of Section 39.2(b), which states,
inter
alia,
that publication of the intent to file
a request for site
approval must occur
“no later
than
14 days prior”
to
the
time the
application
is
filed (emphasis added).
A plain reading of
this
provision
is that it allows
filing
of the application
to occur on
the fourteenth day after publication, but that if filing were
to
occur
on any date closer
to
the date
of publication, the
14 day
requirement would
not be met.
That
is, the
fourteenth day after
publication
is
the soonest day that application can take place
and still comply with Section 39.2(b).
For
the above—mentioned reasons, the Board
finds that
jurisdiction was properly vested
in the County,
and
is con-
sequently properly vested
at
this time
in
the Board.
The
fundamental fairness of the procedures employed by the County
will therefore
be evaluated.
79-75
—9—
FONDAMENTAL FAIRNESS
Ash
contends
that,
for
a
number
of
reasons,
the
procedures
employed
by
the
County
in
reaching
its
decision
lacked
fundamental
fairness.
“Fundamental
fairness”
as
used
in
Section
40.1 of the Act creates
a
statutory
due
process
standard,
which
has been construed as requiring application of adjudicative due
process
in regional pollution control facility site location
suitability proceedings.
E
&
E Hauling,
Inc.
v.
Pollution
Control Board,
116 Ill.
App.
3d 586,
596,
451 N.E.2d 555,
aff’d,
107 Ill.
2d
33, 481, N.E.2d 664
(1985).
Thus the proceedings
conducted
to consider applications
for new regional pollution
control facilities are quasi—judicial
in nature, and so must
include the attendant due process safeguards.
Specifically, Petitioner argues that he was not afforded due
process below for tne following reasons:
1.
Sixteen members of the County Board voted
without
having
attended
all
the hearings
or
having
read
the
transcripts
of
those
hearings
they
missed,
thereby
failing
to
adequately
“consider”
the
evidence
before
them;
2.
Ex
parte
contacts
took
place
between
County
Board
members
and
the
general
public.
3.
One
County
Board
member,
Dale
Carley,
voted
even
though
he
owns
real
estate
near
the
proposed
site
and
was
therefore
biased;
4.
The
County
based
its
rejection
of
Petitioner’s
siting
application
on
improper
criteria;
The
Board
will
address
each
of
these
allegations in
turn.
“Consideration”
of
the
Evidence
A
long-standing
rule
of
Federal
and Illinois administrative
law
is
that,
absent
statutory
provisions
to
the
contrary,
it
is
not
necessary
that
testimony
in
administrative
proceedings
be
taken before the same officers who have the ultimate decision-
making authority.
Administrative proceedings may be conducted
by
hearing officers who refer
the case for
final determination
to
a
board which has not heard
the evidence
in person, and
the
requirements of due process are met
if the decision—making
board
considers the evidence
contained
in
the
report
of proceedings
before
the hearing officer and bases
its determinations there-
79.76
—10—
on.
Homnefinders,
Inc.
v.
City
of
Evanston,
65
Ill.
2d
115,
128
(1976),
citing
Morgan
v.
United
States,
298
U.S.
468
(1936);
Anniston
Manufacturing
Co.
v.
Davis,
301
U.S.
337
(1937);
Quon
Qyon
Poy
v.
Johnson,
273
U.S.
352
(1927);
Estate
of
Varian
v.
Commissioner,
396
F.
2d 753
(9th Cir.
1968); and NLRB v.
Stocker
Mfg.
Co.,
185
F.
2d
451
(3d
Cir.
1950).
Ash
does
not
challenge
the
general
application
of
this
rule
to
the
case
at
bar.
That
is,
he
does
not
contest
the
County’s
use
of
a
committee
to
con-
duct
the hearings
in this matter and does not argue
that such
action
was
inappropriate.
However,
he
does
contend
that
the
County
failed
to
adequately
“consider”
the
evidence
contained
in
the
record
before
denying
his
application
and
therefore
did
not
afford
him
due
process.
In Illinois, Homefinders
and
a long line of cases which have
followed
have
firmly
established
that
the
requirements
of
due
process mandate that in administrative proceedings decision-
makers
who
do
not
attend
hearing(s)
in
a
given
case
must
base
their
determinations
in
that
matter
on
the
evidence
contained
in
the record of such hearing(s).
The Homefinders case began as
an
appeal
in the circuit court of Cook County of an administrative
decision
of
the
Evanston
Fair
Housing
Review
Board
(“FHRB”).
The
FHRi3 had earlier
found
that Appellants,
a sales representative
and
her
employer,
a
real
estate
company,
violated
certain
antidiscrimination
provisions
of
the
Evanston
Fair
Housing
Ordinance
on
two
separate
occasions.
The
circuit
court
reversed
the FHRB’s decision, and was
in turn reversed
by the Illinois
Appellate
Court
First
District.
The
Illinois
Supreme
Court
granted
leave
to
appeal.
The
complaint
for
review
filed
by
plaintiffs
in
the
circuit
court
asserted
various
grounds
for
reversal
of
the
FHRB’s
findings.
One of the assertions made
in the complaint went
to
the question of whether due process requires that the
determination of penalties by the FHRB
be made only by those
members who heard
the evidence.
On review, the Supreme Court
held that
The requirements of due process are met
if the
decision—making
board
considers
the
evidence
contained
in
the
report
of proceedings
before
the
hearing
officer
and
bases
its
determina-
tions
thereon...
We
are
in
accord
with
the
majority
view
and
conclude
that
the
require-
ments
of
procedural
due process
would
be
met
under
the
Evanston
Fair
Housing
Ordinance
if
those
members who
were not personally present
at
the
hearings
base
their
determination
of
penalties
on
the
evidence
contained
in
the
transcript
of
such
proceedings.
65
Ill.
2d
115
at 128—129.
79-77
—11—
See Starkey
v.
Civil Service Commission.,
97
Ill.
2d
91,
100
(1983); American Welding Supply
v.
Department
of Revenue,
106
Ill. App. 3d
93,
97—98
(5th Dist.
1982); Betts
v. Department of
Registration
and
Education,
103
Ill.
App.
3d
654,
661—662
(1st
Dist.
1981);
Ramos v.
Local Liquor Control Commission
67
Ill.
App. 3d 340,
341—342
(1st
District
1978);
Bruns
v.
Deptartment
of
Registration and Education,
59
Ill. App.
3d 872,
875—876
(4th
Dist.
1978).
In the
instant case,
the Board’s analysis
of whether the
County adequately “considered”
the evidence adduced at hearing
will involve consideration of two questions:
First,
whether the
transcripts were reasonably available such that it can be said
that the County Board members had
an opportunity to review them,
and,
second, whether overall the County members were sufficiently
exposed
to
the record to support a finding that they “considered”
the evidence within
it.
Throughout portions
of the Board hearing
in this docket,
there was some confusion as
to the exact date by which
the County
had received
all
of the
transcripts
of the County hearings.
Eventually it was agreed by the parties that original copies of
transcripts
for each
of the
County hearings had been received
by
the county clerk on January 30,
1987.
Transcript of May
12,
1987,
Pollution Control Board hearing, page l83~. Complete
photocopied sets of the transcripts were not available
to the
County Board members, however, until
immediately before
the
February
3 meeting
at which they voted
on Ash’s application
because copies
of the last transcript were not available until
9:00
p.m.
on
February
2,
1987.
Ash
Request
for
Admissions,
par.
68,
April
8,
1987;
Answer
to
First
Set
of
Request
for
Admissions,
par.
68,
April
22,
1987.
The Board
finds that the
transcripts were
not
reasonably
available to the county board members and,
as
a consequence,
those board members that were not present
at the hearing
could
not have “considered the evidence.”
While
the transcripts were
in the possession of the county clerk on Friday,
January
30,
they
were not photocopied
for distribution
to the county board members
until late Monday evening
on February
2.
The substantive
briefing of the board
as
a whole, by the committee,
occurred
Tuesday morning, February
3.
This was immediately followed
by
the final vote on the application.
Therefore,
there was no time
or reasonable opportunity for
the board members
to adequately
consider
the record prior
to decision.
Hereinafter, references
to
the
transcript
of the Board’s May
12,
1987, hearing will appear
as “Board
R.
at
79-78
—12—
Though the Board
is convinced that Ash has persuasively
shown that the decision below was arrived at
in
a fundamentally
unfair manner
for
this reason,
the Board must add that this case
has presented some very unusual circumstances which are likely
to
distinguish
it from future landfill siting cases
to
follow.
The
applicant posed questions,
in interrogatories,
as
to whether the
county board members had “read
the transcript.” Quite simply put,
that question should never have been asked.
There exists a
substantial
body of case law supporting
the principle that one
cannot
invade
the
mind
of
the
decision—maker.
Just
as
a
judge
cannot be subjected to such a scrutiny,
so
the integrity of the
administrative process is equally respected.
United States v.
Morgan,
313 U.S.
409
(1941); Citizens to Preserve Overton Park,
Inc.
v.
\~olpe,
401
U.S.
402,
420
(1971);
San
Luis
Obispo
Mothers
for Peace
v. United States Nuclear Regulatory Commission,
789 F.
2d
26,
44
(D.C.
Cir.
1986);
Time,
Inc.
v.
United States Postal
Service,
667
F.
2d
329,
335
(Second Cir.
1981); United
Steelworkers of America, AFL—CIO—CLC,
v. Marshall,
647
F.
2d
1189,
1217,
(D.C.
Cir.
1980).
Remedy
The necessary remedy,
and the one which will be utilized
in
this instance by the Board,
is
a remand of this matter
to the
County for
an additional vote on
the Ash application once
the
County Board members have considered the record.
The Board
stresses that no further
hearings need
be held for the purpose of
complying with today’s Opinion and Order.
Ash speculated
that this outcome might result, and argued
prospectively that
this matter should not be
remanded to the
County for further action because the County’s February
3, 1987,
vote on the application
is “void”.
Ash contends that his
application should therefore be deemed approved by o~erationof
law.
Brief
of Petitioner, June
2,
1987, pages
32—37
The Board believes that remand
is appropriate here.
The
intent
behind
Section
39.2
of
the
Act
was
to
give
localities
a
voice
in
the
landfill
siting process.
That intent would be
frustrated
if the Board were
to conclude that applications became
approved
by operation of law whenever missteps occurred during
site location suitability proceedings at the local level.
Approval
of these applications
by operation of
law would also
eliminate the only opportunity there will
ever be to examine some
of the issues
(e.g.,
the six statutory criteria)
that were
to
be
considered
by the local governmental entity.
Hereinafter
referred
to
as “Ash Brief”.
79.79
-13-
Ash expresses concern that remand
is inappropriate because
the County
is predisposed
to vote against the application because
it
already has.
Ash Brief, p.
34.
On the contrary,
the Board
sees
the County on remand as viewing
the merits of the
application
for
the
first time;
as the record will now be
considered, where
it previously was not,
the County will fully
weigh the record developed
in support of
the application.
The
results of the County’s next vote may or may not reflect its
earlier vote, taken at
a time when the record had not been
adequately considered.
Ex Parte Contacts
Ash also contends that the County’s decision was
fundamentally unfair due
to certain
ex
parte contacts which took
place
between County members
and the general public.
Description
of these contacts was provided by Mike Watson and various County
Board members
at
the Board’s May
12,
1987, hearing.
Watson recounted how in conversations he had had with
certain
County
Board
members,
the
subject
of
contacts
between
those
members
and
private
citizens
had
been
discussed.
Watson
testified
that
County Board member
Lawrence Kelly told him that
Kelly had received
a telephone call from
a citizen expressing
concern regarding
the effect
the
landfill might have on artesian
wells
in the area,
and that this concern was one of the factors
behind Kelly’s vote against Ash’s application.
Board.
R.
at 99-
103.
Watson also stated
that during a conversation he
and Ash
had with County Board member Virgil Schroeder,
Schroeder stated
that he had discussed the landfill with people in the Crescent
City area.
Board
K.
at 103—104.
Moreover, watson claimed
that
Schroeder said one of the reasons he voted against the landfill
application was because
the
people within the area were against
it.
Board
R.
at 108—111.
Schroeder testified at hearing that he
never made such a statement
to Watson and Ash, and that he did
not consider public opinion when casting his vote.
Board R. at
145—147.
Watson testified
that County Board member James Lanoue told
Ash and him that Lanoue voted against the application primarily
because everybody he
talked to was against
it.
Board
R.
at
112—
113.
Lanoue admits discussing
the landfill matter with citizens,
but asserts that all
of these communications took place prior
to
the date on which he took office as a County Board member.
Board
K. at 84-85.
Nevertheless, Lanoue admits that public opinion
in
opposition
to the landfill was one of the reasons behind his vote
against
the application.
Board
R.
at
83.
At hearing, Watson also recounted conversations he
had had
with County Board members
Albert Lundberg, Harold
Rust, John
Dowling, and Alan Benjamin.
Watson stated that all of these
persons said they had talked
to
citizens regarding
the
landfill.
Board
K.
at 114—115,
117—118.
No evidence was
79-80
—14—
introduced,
however,
to show that their votes were impacted
by
the
contacts.
There
is
a substantial volume of case law supporting
the
impropriety
of
ex
parte
contact
in
administrative
adjudication.
E
&
E Hauling at
606,
citing United States Lines
v.. Federal
Maritime
Corn.,
584
F.2d
519,
536—542
(D.C.
Cir.
1978);
PATCO
v~.
Federal
Labor
Relations
Authority,
685
F.2d
547,
564—565
(D.C.
Cir.
1982);
Sangamon
Valley
Television
Corp.
v.
United
States,
269
F.2d
221
(D.C.
Cir.
1959);
North
Federal
Savings
&
Loan
Association
v.
Becker,
24
Ill.2d
514,
520
(1962);
Fender
v.
School District No.
25,
37
Ill. App.
3d
736,
745
(1976).
After
it
is determined that
ex parte contacts
did
in
fact
occur,
a reviewing court still must consider
whether,
as
a
result
of
improper
ex
parte
communications,
the
agency’s
decisiorimaking
process
was
irrevocably
tainted
so
as
to make
the
ultimate
judgment
of
the
agency
unfair,
either
to
an
innocent
party
or
to
the public
interest
that
the
agency
was
obliged
to
pro-
tect.
In making
this determination,
a number
of considerations may be relevant: the gravity
of
the
ex
parte
communications;
whether
the
contacts
may
have
influenced
the
agency’s
ultimate
decision;
whether
the
party
making
the
improper
contacts
benefited
from
the
agency’s
ultimate
decision;
whether
the
con-
tents
of
the
communications
were
unknown
to
opposing parties,
who therefore
had
no oppor-
tunity to
respond; and whether
vacation of the
agency’s decision
and
remand
for
new proceed-
ings would
serve
a
useful purpose.
Since
the
principal
concerns
of
the
court
are
the in-
tegrity of the process and
the
fairness of
the
result, mechanical
rules have little
place
in
a judicial
decision whether
to vacate
a void-
able
agency
proceeding.
Instead,
any
such
decision
must
of
necessity
be
an
exercise
of
equitable discretion.
E
&
E Hauling
at 606—607,
citing PATCO at 564—565.
A court will
not
reverse
an agency’s decision because of improper ex parte
contacts without
a showing that the complaining party suffered
prejudice from these contacts.
E
&
E Hauling at
607,
citing
Fender
at
745.
County
Board members Lawrence Kelly and James Lanoue admit
that their votes
on the Ash application were partially premised
on
the prevailing public opinion,
and that
they became aware of
some of
that opinion through contacts they had with citizens.
79-81
—15—
The
Board
finds
that County Board members Kelly and Lanoue
experienced
“ex parte”
contacts.
The Board notes that it reaches
this conclusion regarding Lanoue even though all
of the
discussions regarding the landfill that he had with citizens took
place prior
to
the
time that Lanoue was sworn
in
as
a County
Board member.
These discussions apparently took place after the
election
in which he won
a spot on the County Board, and it is
likely that the contacts occurred largely because the citizens
who
spoke
with
him
knew
of his pending ascension to that
office.
Furthermore,
given
the
admissions
of these two
gentlemen,
the Board
further finds that the votes
of these
two
individuals were
improper.
Messrs. Kelly and Laroue have clearly
specified that their votes were cast
in part due
to public
opinion which they derived through ex parte contacts.
Consequently,
their votes cannot stand
and are disallowed.
These
two individuals will only be able to cast votes on the Ash
application
it they are
able
to
make
determinations
on
the
merits
of that application without relying on,
or being influenced by,
the opinions of others expressed via ex parte contacts.
This notwithstanding,
the Board concludes that the ex parte
contacts
described
by
Ash
are
not
a
sufficient
basis
on which
to
find that the County’s decision was arrived
at
in a fundamentally
unfair manner.
All
of
the other
ex parte contacts which Ash
alleges
have
either
been
denied
(i.e.
those
involving
County
Board
member
Schroeder),
or have not been shown by Ash to have
had any impact on the votes cast by the relevant County Board
members
(i.e.
those involving County Board members Lundberg,
Rust, Dowling,
and Benjamin).
Thus,
all that can be
said is that
two votes out of the nineteen cast were
improper.
Under
the
circumstances,
the Board cannot find that the ex parte
cornlnuni—
cations have “irrevocably tainted” the decision of the County.
The Board’s remand of this proceeding
to the County
is therefore
not
in any way based
on
the ex parte contacts which .occurred
below.
Ash also contends that an
ex parte communication took place
in the form of
a letter
received from the Kankakee River Basin
Commission.
The final hearing held by the County in this matter
took place on December
3, 1986.
Section 39.2(c)
of the Act,
which governs the submission of letters regarding applications
for new regional pollution control facilities,
states
in part
that:
Any
person
may
file written
comment
with
the
county
board
or
governing
body
of
the
munici-
pality
concerning
the
appropriateness
of
the
proposed
site
for
its
intended
purpose.
The
county
board
or governing
body
of
the munici-
pality
shall
consider
any comment received
or
postmarked
not
later
than
30
days
after
the
date of
the
last public hearing.
79.82
—16—
The
letter was received by the County
on January
7,
1987, more
than 30 days after
the close of hearing.
The Board believes that no fundamental
fairness problem
resulted from the County’s consideration of this letter.
First,
Ash inappropriately characterizes the letter
as an
“ex parte”
contact.
Ex parte contacts by definition occur when an
interested person has off—the—record communication regarding the
matter with a decision-maker.
This letter was made part of the
record
by the County,
so was not shrouded from public
view.
No
ex parte contact therefore occurred.
Though Ash inaccurately labeled the County’s receipt of the
Kankakee River Basin Commission letter an ex parte contact, the
major
thrust
of Petitioner’s argument regarding the letter
is
that the County should not have considered
it,
as
it was received
more than
30 days after
the last hearing was held.
The Board
is
similarly unconvinced by this argument.
The Board interprets
Section 39.2(c)
of the Act as establishing
a minimum period
(30
days)
for
receipt of public comment on an application.
A local
governmental entity may ~onsider comments received after
this
time,
in its discretion.
Bias
of
Dale
Carley
Another
aspect
in which Ash challenges
the
fundamental
fairness of the proceedings
below involves the vote cast by
County Board member Dale Carley.
Carley was one of the County
Board members initially appointed
to the Committee for the
purpose of conducting hearings on the Ash application.
At the
time of his appointment, Carley declined
it due
to what he
perceived
as his own bias against
the application.
Carley
testified that his bias at that time existed because of his
ownership of
a farm and private lake located approximately one-
half mile from the proposed landfill site.
Board
R.
at 153—
154.
Carley believed that the landfill would adversely affect
the value of his farm land.
Board
R.
at
160.
Nevertheless, Carley later determined that he should “have
more
of an open mind and hear the evidence at the hearings”.
Board
K.
at 155.
Carley attended most of the hearings held
by
the Committee,
and voted with the rest of the County to deny
Ash’s application.
Board
K.
at 156.
6 The Board
notes that
a party
whose interest
is adverse
to that
of
the person submitting
the comment suffers no additional
hardship under
this interpretation.
If
this letter
had been
received
by the County on the
thirthieth day following the final
hearing
(and so consequently within the time specified by Section
39.2(c)),
Petitioner would have similarly had
no opportunity
to
file
an additional comment rebutting
it.
79.83
—17—
Even though Carley attempted
to evaluate
the application
with more of
an “open mind”, which is
in itself
an admirable
notion,
he was never
able
to
completely
lose
sight
of
the
fact
that he had
a financial interest at stake.
He admits that when
he voted against the application he believed that the existence
of
a
landfill
on
the
proposed
site
would negatively affect the
value
of his property (Board
R.
at 161—162),
and that
this belief
was part of the rationale behind his vote (Board R.
at 162—
163).
Some
fundamental
principles
relating
to
conflict
of
interest
were laid down by the Illinois
Supreme
Court
in
In
Re
Heirich,
10
Ill.
2d 357
(1956),
cert. denied,
355 U.S.
805
(1957):
“It
is
a
classical principle
of jurisprudence
that no man who has
a personal interest in the
subject matter of
decision
in
a case may
sit
in
judgment
on
that
case.
*
*
*
For
the
guidance
of
this
court’s
commissioners
in
future
cases and of all other persons required
to
find
facts
or
apply
law
in
adversary pro-
ceedings,
judicial
or
administrative,
we hold
that
when
such
an
arbiter
has
a
financial
interest
in the subject matter, even though he
personally
be
a
man
of
the
most
fastidious
probity,
it
is
his
duty
to
recuse
himself.
He
must
do
so
if challenged.”
10
Ill.
2d
357 at
384.
A personal interest need not even
be pecuniary;
“(i)t need
only be an interest which can be viewed
as having a potentially
debilitating effect on the impartiality of the decision maker”.
The Board of Education of Niles Township High School District No.
219, Cook County
v. The Regional Board of School Trustees
of Cook
County,
127 Ill. App.
3d
210,
213
(1st Dist. 1984),
citing
International Harvester
Co.
v.
Bowling,
72 Ill. App.
3d
910,
914
(1st Dist.
1979).
Under
the circumstances, Carley should have recused himself
from participating and voting on the application because of his
disqualifying conflict of
interest.
The Board does not envision
how, given Carley’s own statements about
his pecuniary interest,
he can ever be viewed
as being sufficiently free of bias
to be
able to participate
in and vote
on the Ash application.
The reasons courts draw such
a
“bright line”
in these
situations
is
it
is nearly impossible
to probe
an adjudicator’s
mind,
after
the
fact,
as
to whether
he was unfairly influenced
by
a conflict of interest.
As the Illinois Supreme Court and U.S.
Supreme Court have stated, Naperville v. Webrle,
173 N.E.
165
(1930)
at
167,
quoting Crawford
v.
US,
212 U.S.
183:
79.84
—18—
Modern
methods
of
doing
business
and
modern
complications
resulting
therefrom
have
not
wrought any change
in human nature
itself, and
therefore,
have
not
lessened
or
altered
the
general
tendency
among
men,
recognized
by
the
common
law,
to
look
somewhat more
favorably,
though perhaps
frequently
unconsciously,
upon
the
side
of
the
person
or
corporation
that
employs
them,
rather
than
upon
the
other
side.
Bias
or
prejudice
is
such
an
elusive
condition
of
the
mind
that
it
is
most dif-
ficult,
if not impossible,
to always recognize
its existence,
and
it might exist
in the mind
of
one
(on account of
his
relations with one
of the parties) who was quite positive that he
had
no
bias,
and
said
that
he
was
perfectly
able
to
decide
the
question
wholly
uninflu-
enced
by anything
but
the evidence.
The law,
therefore,
most wisely
says
that,
with
regard
to
some
of
the
relations which may exist be-
tween
the
juror
and
one
of
the
parties,
bias
is
implied,
and
evidence of
its
actual exis-
tence need not be given.
In Naperville,
the Supreme Court succinctly stated
the
disposition of an adjudicated case involving an interested
adjudicator:
Appellants contend
that Myers was
not
a
competent
and disinterested commissioner.
If
he
was
not,
his
participation
infects
the
action
of
the
whole
body
and makes
it void-
able.
Rock
Island
&
Alton
Railroad
Co.
v.
Lynch,
23
ILL.
645;
State
v.
Crane,
36
N.J.
Law 394.
County Board Consideration of Public Opinion and Other Improper
Criteria
Ash alleges
that the County attached “undue significance”
to
public opinion expressedconcerning the proposed landfill.
Ash
Brief,
p.
38.
In support
of this contention, Ash cites
paragraphs 3(e)
and
3(g)
of
the County’s resolution.
These
paragraphs read as follows:
3.
That
the applicant has
not adequately
or
satisfactorily
demonstrated
that
the
facility
is
located
so
as
to
minimize
incompatibility with the character of the
surrounding
area,
and
to
minimize
the
effect
on
the
value
of
the
surrounding
property,
in
that:
79.85
—19—
*
*
*
*
*
e.
The
residents
in
the
area
strongly
oppose
the
landfill.
Two
state
representatives
have
expressed
opposition
to the proposed
site.
*
*
*
*
*
g.
Written
public
comments
indicated
that
the
Kankakee
River
Basin
Commission
and
the
Iroquois
County
Soil
and
water
Conservation
Dist.
were opposed
to the proposal.
Three
letters
were
in
favor
of
the
site,
and
over
435
letters
were opposed.
Cty.
K.
at
70.
Ash also asserts that the County relied
on other factors
outside
of the six statutory criteria.
Petitioner cites only one
example
for this alleged improper
reliance, however, and that
is
another finding made
by the County
in its resolution.
This
findinc~, found at paragraph 2(m),
is reprinted below:
2.
The
applicant
has
not
adequately
or
satisfactorily
demonstrated
that
the
facility
is
so
designed,
located
and
proposed
to
be
operated
that
the
public
health,
safety
and
welfare
will
be
protected,
in
that:
*
*
*
*
*
in.
The
township
road
leading
to
the
site
has
not
been
designed
for
frequent travel
by heavy trucks.
An
empty
garbage
truck weighs about
12
tons.
This
road
does
have
a
five
ton
load
limit
for
three
months
of
the year.
Cty.
R.
at
69.
The Board finds that none of the examples raised by Ash
indicate any degree of fundamental unfairness.
Rather,
the
paragraphs cited exemplify an appropriate reliance on public
comment received
and on the statutory criteria.
Section 39.2(c)
of the Act allows any person
to file written
comment with
a local governmental entity regarding
the
appropriateness of the proposed
site for
its intended purpose
(i.e.
the siting
of
a new regional pollution control facility).
Local governmental entities are mandated,
by Section 39.2(c),
to
79.86
—20—
“consider”
any such comments
as long as they are
received within
30 days after the last public hearing.
The legislature obviously intended
that consideration of
public comments
be a part of the local governmental entity’s
decision-making process.
The County,
in paragraphs
3(e) and
(g)
of the resolution, simply summarized
the flavor of the comments
received.
When,
as here, three
letters were submitted
in
favor
of the application and
at least 435 against
it, one does not
attach
undue significance
to public opinion ~
concluding that
area residents “strongly oppose” the application.
Paragraph
2(m) reflects a concern that goes
to the question
of whether the proposed facility
is “so designed, located and
proposed to be operated that the public health,
safety
and
welfare might be protected”
(Section 39.2(a)(2)
of the Act, the
six statutory criteria).
If the
trucks using
the
site would
render
the road unsafe,
then the public health,
safety and
welfare might
not be protected.
This would thus be
a proper
matter
for the County
to consider.
The Statutory Criteria
Given
the Board’s determination
to remand
this proceeding
for
remedy of the fundamental fairness problem stemming from the
County’s lack of consideration of the record
and
Mr. Carly’s
participation
in the proceeding,
the Board will not address Ash’s
arguments concerning
the County’s appraisal of his application
vis—a—vis the six criteria.
At this time it would be premature
for
the Board
to make any finding re’~ardingwhether
or not Ash
has shown that the County’s decisions on each of the criteria can
be supported by the manifest weight of the evidence.
This Opinion constitutes
the Board’s findings of fact and
conclusions
of law
in
this matter.
IT
IS SO ORDERED
Board Member
Ron Flemal dissented and Boar
Member
3.
Theodore Meyer was not present and did not vote
I,
Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby certify th
th
above Opinion was
adopted on
the /~day
of
~
,
1987,
by
a vote
of
‘~~--/.
7
Dorothy M. ~nn,
Clerk
Illinois Pollution Control
Board
79.87
