Fundamental Fairness
86423

ILLINOIS POLLUTION CONTROL BOARD

November 21, 1985

CONCERNED CITIZENS GROUP,     

)

An Unincorporated Voluntary    

)

Association, THERESA       

)

CASTELLARI, DEE ANN MAYER,    

)

and SHIRLEY WATSON,        

)

)

Petitioners,

)

)

)

PcB 85—97

)

COUNT! OF MARION and

)

I.S., INC., an Illinois

)

corporation, also known

)

as INDUSTRIAL SALVAGE and

)

INDUSTRIAL SALVAGE, INC.,     

)

)

Respondents.      

)

•3PINION AND 

ORDER OF

TEE BOARD (by R. C. Flemal):

This matter comes before the Board upon the July 2, 1985,

appeal by Concerned Citizens Group, Theresa Castellari, Dee Ann

Mayer, and Shirley Watson, from a May 29, 1985 decision of the

Marion County Board (“M.C.B.”). On that date the M.C.B. approved.

an application filed by I.S., Inc. (‘I.S.’), an Illinois

Corporation also known as Industrial Salvage and Industrial

Salvage, Inc., for approval of the siting of a new regional

pollution control facility

to be located in an unincorporated

area of Marion County. The

proposed facility actually is a 40—

acre tract located directly east of and adjacent to an existing

landfill operated by I.S.

Since there are a number of Petitioners and Respondents

involved in this matter, they will be clearly identified at the

outset. Concerned Citizens Group is an unincorpoated voluntary

association of 123 persons, nearly all of whom are said to reside

in the immediate vicinity of the proposed facility. Petitioners

Theresa Castellari, Dee Ann Mayer, and Shirley Watson also live

in the immediate vicinity of the proposed facility. The

Respondents in this matter are I.S. and the Marion County Board;

section 40.1(b) of the Illinois Environmental Protection Act

(“Act) requires that in an appeal from a county board’s approval

of an application for the siting of a new regional pollution

control facility, the county board and the applicant be named as

co—respondents.

Hearings on 1.S.’ application were held before the M.C.B. oct

April 19, May 2, and May 17, 1985, and the M.C.B. rendered its

decision approving I.S.’ application on May 29, 1985.

86-423

—2—

Petitioners appealed this decision to the Board on July 2, 1985,

as stated above. On July 11, 1985 the Board accepted the case*

and authorized it for hearing, and ordered the M.C.8. to prepare

and file the record on appeal. Petitioners filed a ‘Motion to

Dismiss Request for Site Approval’ on July 29, 1985, to which

IS, filed a response on August 2, 1985. The Board denied this

motion by Order of August 15, 1985. The States Attorney for

Marion County filed the record on July 30, 1985. On August 20,

1985 Petitioners filed a ‘Supplemental Motion to Dismiss Request

for Site Approval’, which was denied by the Board on September 5,

1985. The Board hearing in this matter was held on September 12,

1985. 1.9. filed a ‘Motion to Correct Record and Pleadings’ on

the same day hearing was held and the Board denied that motion by

Order of October 10, 1985. I.S. also filed a poet—hearing brief

on October 28, 1985. No other briefs were filed.

A motion for judgement by default was made by Petitioners at

hearing (Board hearing, R. at 165). This motion was apparently

made in furtherance of Petitioners’ belief that I.S. refused to

comply at that time with Hearing Off icer Shoenberger’s ruling to

produce a certain ‘Lease and Purchase Agreement’ relating to the

sale of I.S.’ Marion County facility. I.S. did produce the

document at hearing, but with certain information relating to the

financial aspects of the sale blacked out. I.S. argued at

hearing that the blacked out financial data was not relevant to

any allegation or issue raised by Petitioners (Board hearing, R.

at 163). The Board agrees, and therefore denies Petitioners’

motion for judgement by default. To the extent this contradicts

the Hearing Officer’s order regarding production of the document,

such order is overruled.

Cases such as this one which involve appeals from local

governmental decisions on the siting of new regional pollution

control facilities (referred to as ‘S.B. 172’ cases) involve two

main issues: Whether the local governing body’s decisions on the

six statutory criteria of 539.2 of the Act are supportable under

the manifest weight standard of evidence, and whether the

procedures used by the local governing body in reaching its

decision were ‘fundamentally fair’. These issues will be

addressed in that order.

*Section 40.1(b) of the Act requires that the Board hear a

petition ‘unless the Board determines that such petition is

duplicitous or frivolous, or that the petitioner is so located as

to not be affected by the proposed facility.’

86-424

C

Section 3~2’a) of the ~ct requIres a local governmental

entity to 

apply

six

critera when making

the determination to

approve/disapprove a 

new regional Dollution

control facility.

The six criteria 

ares

l

the facili~y is necessary to accommodate

the

waste 

needs

of the a~ea

it

i~ interded to serve;

2.

the f~~lity is so designed, located

awl

propose-i to he

op~r’

at t~ public health, safety

awl welfare will

bej

3. the  

lity is ocated so as to

minimize

inco

~ibili

with the character of

the surrounding

area  

mini~ize the effect on the value

of the

surr  

ii~ ~rop’rty;

4. the  

~iy

Ja~ated outside the boundary of the 100

year

p a

~ a~determined

by the Illinois

Depal ~nt at ransportatlon, or the site is flood—

proofc to meet the standards and requirements of the

Illino s Department of Transportation and is aopro~edby

that Department;

5. the plan of operations for the facility is designed to

minimize the danger to the surrounding area from fire,

spills, or otner operational accidents; and

6. the t. -f~ p-~tternc~to or from the facility 

are so

desigrea -s  miuimize the impact on existing traffic

flows

Sectiou 43

a ~

(whea read in conjunction with

§40,1(a)) 

providea at the burden

of proof is on the

oatitioner 

The app)icant must prove

to the County Board by a

prepondera~ice

te evid~nce that the

facility satisfies all six

criteria. 

However in order to overturn a County Board decision,

a petitioner mus  ove to this Board that the local govenmental

entity~sdecisio~ on the six criterIa were against the manifest

~ieightof tne evidcrce E &~,j~1linv.Pollu~onContro1Board,

116 Ill. App. 3d    

08, 451 N.E 2d 555 (2d Dist. 1983),

As Petitioners have made no such showing in this 

case, the

Board affirms the decisions of the ?4.C.B. on the 

six

criteria.

Petitioners have raised no arguments concerning the six criteria

through any pleadings, ard at the September 12, 1985 Pollution

Control Board hearino here~inafter referred to as ~Board

hearing”) on this matter, Petitto ers did not make a presentation

of any of the six cr teria until counse1~sclosing 

argument.

Even then, coursel only riefly addressed the M.C,B.~s decisions

on two of     

er

c~ a~’nlydid not show that the

decisions b~  

~ nst tue ranifest weight of the evidence

presented rh

—4—

Fundamental Fairness

Section 40.1(b) of the Act (when read in conjunction with

540.1(a)) requires the Board in S.B. 172 cases to consider the

fundamental fairness of the procedures used by the local

governmental entity in reaching its decision. Petitioners have

pleaded two issues which can be construed as going to the

fundamental fairness of the proceeding below: First, that of

alleged misrepresentation on the part of I.S. due to the various

names it appears to have operated under in the past, and second,

the sale of I.S. by Respondent John Prior, the occurrence of

which is uncontested but for the date on which it transpired.

Petitioners have made much of the issue regarding the true

legal name of Respondent John Prior’s company, which filed the

application to the M.C.B. for approval of a new regional

pollution control facility. Specifically, Petitioners contend

that 1.8.’ request for site approval should be ‘dismissed’ due to

Mr. Prior’s ‘misrepresentation’ of the name of the company he

represented at that time.

Throughout the proceedings below and the statutory notices

given pursuant to those proceedings, Prior’s company variously

represented itself as Industrial Salvage, Industrial Salvage,

Inc., and 1.8., Inc. The testimony given by Mr. Prior at the

Board hearing, however, clarifies this apparent discrepancy. In

1969, Mr. Prior purchased a business operating under the name

Industrial Salvage. The business was not incorporated at that

time, and Mr. Prior operated the business as a sole

proprietorship.

In 1980, Mr. Prior incorporated the business under the name

1.8., Inc. (Board hearing, R. at 195—6). Further, Mr. Prior

stated that from 1980 on he tried to promote the corporation’s

identity as I.S., Inc., but that the Industrial Salvage name

‘stuck’ (Board hearing, R. at 196).

The Board finds that no real confusion resulted from this

company’s use of several names. The Petitioners—Objectors in

this matter certainly knew Mr. Prior as the person operating the

landfill their homes surround; this is not the first time that

some of these same petitioners have objected to attempts by Mr.

Prior to expand his landfill (see PCB 83—173, vol. 59, p. 233 of

the Opinion volumes). Under one name or another, Mr. Prior has

operated at the same site for over 15 years. It stretches reason

to believe that local residents were not aware of which company

he represented.

The same reasoning is applicable to any argument that the

14.C.B. was confused as to the true identity of Mr. Prior’s

company. This proceeding was the third time in less than two

years that Mr. Prior had come before the M.C.B. regarding the

siting of a new regional pollution control facility. Moreover,

the chairman of the M.C.B., Mr. Farrol Armstrong, testified that

86423

he knew Mr~Prior perso~ally, and knew that he operated a

landfill in Marion County orior to the initiation of this

proceeding (Board hearing, R at l2~). The Board finds no

confusion whatsoever, and consequently no fundamental fairness

problem, stemming from the issue of I,S~ legal named

Petitioners also allege that approval of a new regional

pollution crtrol f  il~typursuant to S.B 172 is not

transferable, and that because Mr~Prior sold the site of the

facility here a~is~ueUs M.C P ~s aoproval should be “reversed’~

since I.S~ is  lorger t e party in Uterest (Board hearing, R.

at 24O)~ O~tr 1~, P~t t orera ~lieve the proceedings below

to have been 

ane a ~y rfa r ecause the party who now 

has

the interest  

~e LdC1L ~yii~ ~ot .come in in its own name

and see if it  ave i~ doar hearing, R. at 240),

The Boar~.          

ho~the sale of the facility

violates the          

rda ental fairness. ~o law or

theory is put  

ard t     

i.~ ing)y articulates Petitioner’s

ar-jument. The  

d h~ in ~c past, deait with similar

~rgumen~s rega irg ha s  o~a facility and the ability and

responsibility o  pr o it to follow through with proposed

design and operation features.   

~

~

PCB 83~l67, March 8, 1984. However, in the

Watts case the a~gu~er.t~vas Ta~1~in the context of criterion rio,

2, which deals with d~sign,location and operation as it relates

to the protection of public health, safety and welfare, riot

fundamental fairness. In Watts, tne Board outlined the

appropriate scope of review by the County of criterion no. 2: the

County can review ~‘concptual or schematic design to determine if

the right type or sLel and necessary safeguards were present”

(Id. at 15)  

er I r   he Petitioners~ argument that the sale

of the propose. C  lity violates fundamental fairness is

rejected, as  

is

oh supported by law.

There were .~ee~a)other aspects of the proceedings below

which the Peti ~   

ised at hearing in an attempt to show a

lack of fundarr~ra I i ress in the M,C.B, hearings. Ptmong these

were: a conve.~

e ween board ~iembersArmstrong and Biagi in

which the hig~ ~  o  e County of conducting the hearings was

discussed (Bo r  e-riiu, U at 62); the allegation that the

M.C.B. at leaa ar ~r y based its decision on bids received by

the City of Centr 1  f orn contractors attempting to wrest the

city~sdispos I b ne s froir I S., Inc., and that although these

bids ~cre suppo~ad Co amoants higner than were expected to be

received, Petitio ers did not have the opportunity to see the

bids nor cross e artine anyone related to them because none of the

bids were put into the record (Board hearing, R. at 229—231); a

conversation betweer Ther~sa Ca~tellari (a resident of Marion

County) and M.~B member Kessler, in which the board member

admitted he ~iadreneived pton~calls from persons urging him to

vote in favor  aporoiing the application (Board hearing, R. at

232~3); nr al   

i

n

r

V

‘

B ~reLb~rMartin, who

appareitly vo   

favor C the aoplication even though he

supposedly

alleged 

to be

(Board hearirc

bearing office..

summarized t

members may h~/

criteria.

Regardino ~U

absence from U~

fundamental fai a

attendance at

transcribed a

in question p~

Evanston, 

his vote 

Mr. V

fairness.

y I 1~ ,C

hearings,

which is

iougt no

citation was given

an a .~ej thor tJa because

the

tha lay 2 , 1 U Ti C F rre..~tlngorally

at 39 

a C

the

Act,

the r4,C.B.

r

i

u cc aa to t ~e ...

wording of the

U

a

P. member Martin’s

a

a

w 41 established that

r cc oe~s’

personal

is fully

~ath. to the member(s)

.~.. Inc. v.Ci

c:t~fore,

by casting

d

i

~rs fundamental

The Board            

c

t~ ny of the

arguments

noted above, w             

r     o caused the hearings

below to be Cu              

i.

U

~stablished that

“fundamental C                   

I Us Act creates a

statutory duc p~     

~ ‘ci as Ucn construed as

requiring applia  n ot     

a iva die p~ocess in S.B, 172

proceedings. E           

~ri ~t 

..98~

9, cited in Industrial

~

it i

~ ~4aron

83~l73 (February 22,

1984), and 

To~i

V~i~

County Board, et. al,, PCB

83~228(March 

21, 9~4

c .U Ii St

District, June

21,

1.984). In Ii

t

~iøt  

‘

ii,

4-ne ‘bard finds

none of

these charges of ‘u               

rat: a finding that, for

any of the ato erc~C            

~ ings below lacked

fundamenta La

The Boa

to

the alleo

substantia 

vota~i

parte contac~ 

...

supra, citing (1

F.2d 

519, 53U~

~~mo~yal1

(D.C Cir, 1

Becker, 24 111

25, 37 Ill, Ati.

those between

which 

involve

procee~inc. :i

C4r.

1982), 68

intended 

to e ~‘omfr

proceed~ng; 

r

proce 

hug tha

as a 

wnole nay hava

“cx parted’, the wri

ArmsLroi~ Cr r

hearing, 

~. a~.

I  ~uussion, however,

a :r acts. There is a

a a., upp 

.i g e impropriety

of ex

a at ye dj idi~ation B & E Haulin

L.r

eder~ Marit me Corn., 584

19~8 

, UIC, ~uora at

564~-66;

r

ed

~tetes, 269 

2d 221

Association v.

5

1cr

School

District ~Io.

Ia 1.              

Ex a’  te” contacts are

cc

an agency

decisionmaker

re~’~a’t ~ .

merits of the

~i~j~~hority (D.C.

36 62

... Ler~.s~edperson” is

i

r~ ~r v~t ar sirrpiy

the parties to a

a

I

U an interest in

the

U’   

a a

i~,terest the

public

IC U a .. UUcr PATCO~s

definition of

a

a C

Chairman

U

landfill (Board

a

-ì

gedly received by

—7—

I4.C.B. member Kessler from persons supportive of 1.8.’

application (Board hearing, R. at 158) were ex parte contacts.

Determining whether cx parte contacts did in fact occur is

only the first prong of the two—prong test in the cx parte

area. The other requires a reviewing court to consider whether,

as a result of improper ex parte communications, the agency’s

decisionmaking process was irrevocably tainted so as to make the

ultimate judgement of the agency unfair, either to an innocent

party or to the public interest that the agency was obliged to

protect. B & B Hauling, supra at 606, citing PATCO, supra at

564—65. Instead of applying mechanical rules in determining

whether to vacate an agency proceeding, the reviewing court’s

decision must of necessity be an exercise of equitable

discretion. B 

B Hauling, supra at 607, citing PATCO, supra at

565.

The Board finds that the cx parte communications which

occurred below did not ‘irrevocably taint’ the M.C.B. proceedings

in this matter. Chairman Armstrong received a written message

before the vote from the operator of the Greenville landfill

stating that that facility had room to handle all of Marion

County’s refuse. That information can only be construed as

unfavorable to 1.8.’ application, so thus could not have

influenced the vote cast by Chairman Armstrong, which was to

approve the application. The phone calls allegedly received by

M.C.B. member Kessler remain simply that: alleged. Petitioners

did not call Mr. Kessler as a witness, which prevented them froan

determining whether the calls actually occurred and also whether

the communications affected his vote in any way. In the face of

these deficiencies, the Board cannot say that these calls,

assuming arguendo their occurrence, irrevocably tainted the

proceedings below to such an extent that remanding this case to

the M.C.B. would be warranted.

The Board notes that one of the reasons it finds these

varied arguments of Petitioners to hold little weight is because

Petitioners failed to fully develop them in well—reasoned form

before the Board; these positions were never raised in the form

of pleadings or briefs but were rather made inadequately at

hearing, so the Board was never availed of them in a form where

the issues were carefully framed 

and

presented for decision.

This Opinion constitutes the Board’s findings of fact 

and

conclusions of law in this matter.

86423

ORDER

The May 29, 1985 decision of the Marion County Board

approving the request of 1.5., Inc. for approval of the siting of

a new regional pollution control facility is hereby affirmed,

IT IS SO ORDERED.

Board Members C. Anderson and C. Marlin concurred.

I, Dorothy V. Gunn, Clerk of the Illinois Pollution Control

Board,

hereby certify that the above Opinion and Order was

adopted on the~/-~ day of  

2-~’’~

1985,

by a vote 

____

~hyM.unn,C1erk

Illinois Pollution Control Board