ILLINOIS POLLUTION CONTROL BOARD
November 21, 1985
CONCERNED CITIZENS GROUP,
)
An Unincorporated Voluntary
)
Association, THERESA
)
CASTELLARI, DEE ANN MAYER,
)
and SHIRLEY WATSON,
)
)
Petitioners,
)
)
V.
)
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
oh
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
i
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)
r
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,
65
his vote
Mr. V
fairness.
y I 1~ ,C
hearings,
which is
~
iougt no
citation was given
it
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
i,
w 41 established that
r cc oe~s’
personal
i
is fully
~ath. to the member(s)
.~.. Inc. v.Ci
of
c:t~fore,
by casting
d
~i
i
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
B
83~l73 (February 22,
1984), and
To~i
t
V~i~
County Board, et. al,, PCB
83~228(March
21, 9~4
c .U Ii St
District, June
21,
1.984). In Ii
ol
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
~u
25, 37 Ill, Ati.
those between
which
involve
procee~inc. :i
C4r.
1982), 68
intended
to e ~‘omfr
proceed~ng;
it
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
F.
2d 221
-
L
an
Association v.
5
1cr
School
District ~Io.
Ia 1.
Ex a’ te” contacts are
cc
an agency
decisionmaker
r
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
t
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
of
____
~hyM.unn,C1erk
Illinois Pollution Control Board